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Public Library 

Kansas City, Mo. 



fENSION ENVELOPE CORP. 



KANSAS CITY, MO PUBLIC LIBRARY 




COLLECTED 
LEGAL PAPERS 



BY 

OLIVER WENDELL HOLMES 



NEW YORK 
PETER SMITH 

1952 



COPYRIGHT, 1920, BY 
HARCOURT, BRACE AND HOWE, INC. 



REPRINTED, 1952 

BY PERMISSION OF 

HARCOURT, BRACE AND COMPANY 



CONTENTS 

PAGE 

EARLY ENGLISH EQUITY, 1885 i 

THE LAW. SPEECH, 1885 25 

THE PROFESSION OF THE LAW. PART OF AN ADDRESS, 

1886 29 

ON RECEIVING THE DEGREE OF LL.D. SPEECH, 1886. . . 33 

THE USE OF LAW SCHOOLS. ORATION, 1886 35 

AGENCY, 1891 

1 49 

n 81 

PRIVILEGE, MALICE AND INTENT, 1894 117 

LEARNING AND SCIENCE. SPEECH, 1895 135 

EXECUTORS, 1895 141 

THE BAR AS A PROFESSION, 1896, 153 

SPEECH AT BROWN UNIVERSITY, 1897 164 

THE PATH OE THE LAW, 1897 167 

LEGAL INTERPRETATION, 1899 : 203 

LAW IN SCIENCE AND SCIENCE IN LAW. ADDRESS, 1889 210 

SPEECH AT BAR ASSOCIATION DINNER, 1900 244 

MONTESQUIEU, 1900 . . 250 

JOHN MARSHALL. FROM THE BENCH, FEBRUARY 4, 1901 266 
ADDRESS AT NORTHWESTERN UNIVERSITY LAW SCHOOL, 

1902 272 

ECONOMIC ELEMENTS, 1904 279 

MAITLAND, 1907 283 

HOLDSWORTH'S ENGLISH LAW, 1909 , 285 

LAW AND THE COURT. SPEECH, 1913 296 

INTRODUCTION TO CONTINENTAL LEGAL HISTORICAL 

SERIES, 1913 298 

IDEALS AND DOUBTS, 1915 33 

BRACTON, 1915 3& 

NATURAL LAW, 1918. . , . . 3 10 



PREFACE 

This collection has been made by the kindness of 
a friend, Mr. Harold J. Laskl, and I owe Mm thanks 
for gathering these little fragments of my fleece that 
I have left upon the hedges of life. They are printed 
as they appeared and I have been unable to do more 
than run my eye over them, but I am glad to see 
them put together in a book, as they offer some views 
of law and life that I have not expressed elsewhere 
so fully. The place of original publication is given 
at the head of each paper, and I thank the several 
publishers for their assent to the reprint. 

A later generation has carried on the work that I 
began nearly half a century ago, and it is a great 
pleasure to an old warrior who cannot expect to bear 
arms much longer, that the brilliant young soldiers 
still give him a place in their councils of war. 

OLIVER WENDELL HOLMES 

June 15, 1920 
WASHINGTON, D.C 



EARLY ENGLISH EQUITY* 

I. USES 

AT the end of the reign of Henry V. the Court of 
Chancery was one of the established courts of the 
realm. I think we may assume that it had already 
borrowed the procedure of the Canon law, which 
had been developed into a perfected system at the 
beginning of the thirteenth century, at about the 
same time that the Chancellor became the most im- 
portant member of the King's Council. It had the 
"Examination and oath of the parties according to 
the form of the civil law and the law of Holy Church 
in subversion of the common law," 1 It had the sub- 
poena, which also it did not invent, 2 and it had a 
form of decree requiring personal obedience. 3 

* Law Quarterly Review, Vol. i, p. 162. (1885.) 

1 Rot. Parl. 84 (3 Hen. V. pt 2. 46, No. 23). 

2 See writ addressed to sheriff, Rot. Claus. 16 Hen. HI. m. 2 dorso 
in i Royal Letters, Hen. Ill (Rolls ed.), 523. Proc. Privy Council 
(Nicholas) passim. Stat. 20 Ed. Ill, c. 5. The penalty was usually 
money, but might be life and limb; i Proc. Priv. Counc. (21 R. II. 
A.D. 1397). The citation of Rot. Parl. 14 Ed. Ill, in i Roll. Abr. 372, 
which misleads Spence (i Eq. 338n.) and earlier and later writers, 
should be 14 Ed. IV. (6 Rot. Parl. 143), as pointed out already by 
Blackstone, 3 Comm. 52 n. We also find the writ Quibusdam certis de 
causis, a writ in the form of the subpoena except that it omitted the 
penalty; Palgrave, King's Council, pp. 131, 132, note X; Scaldewell v. 
Stormesworth, i CaL Ch. 5. 

3 See Audeley v. Audeley, Rot. Claus. 40 Ed. HI, "svr peme de sys 



2 COLLECTED LEGAL PAPERS 

Down to the end of the same reign (Henry V.) 
there Is no evidence of the Chancery having known' 
or enforced any substantive doctrines different from 
those which were recognized in the other courts ex- 
cept two. One of them, a peculiar view of contract, 
has left no traces in modern law. But the other is 
the greatest contribution to the substantive law 
which has ever been set down to the credit of the 
Chancery. I refer to Uses, the parent of our modern 
trusts. I propose to discuss these two doctrines in 
a summary way as the first step toward answering 
the question of the part which Equity has played in 
the development of English law. 

As a preliminary, I ought to state that I assume 
without discussion that the references to aequitas in 
Glanvill, Bracton, and some of the early statutes 
passed before the existence of a Chancery, havfe no 
bearing on that question. 4 I ought also to say that 
the matters of grace and favour which came before 
the Council and afterwards before the Chancellor 
do not appear to have been matters in which the sub- 
stantive rules of the common law needed to be or 

mill livres au paier au roy" cited Palg. King's Council, 67, 68; 2 Cal. 
Ch. x. See prayer in 3 Rot. Parl. 61 (2 R. II. 26). Imprisonment for 
contempt again is older than the Chancery, e.g. Mem. in Scacc. 27 (M. 
22 Ed. I) in Maynard's Y. B., part i. 

4 Glanvill, Prologus, Bracton, fol. 230; ib. sb, "Aequitas quasi 
aequalitas." Fleta, II. C. 55, 9. Petition of Barons, .27 (A.D. 1258), 
in Annals of Burton (Rolls ed.), 443, and Stubbs, Select Charters, for 
remedy ex aequitate juris by writ of entry or otherwise. Dictum de 
Kenttworth, pr. (A.D, 1266) Stat. of Realm, 51 Hen. Ill, and Stubbs, 
Select Charters; Close Rolls of Hen. Ill, cited in Hardy, Int. to Close 
Rolls, xxviii. n. 5 (8vo. ed. p. III). So "right and equite," letter missive 
of Hen. V. to Chancellor, I Cal. Ch. xvi 



EARLY ENGLISH EQUITY 3 

were modified by new principles, but were simply 
cases which, being for some reason without the juris- 
diction of the King's ordinary courts, either were 
brought within that jurisdiction by special order, or 
were adjudged directly by the Council or the Chan- 
cellor according to the principles of the ordinary 
courts. 5 

I agree with the late Mr. Adams that the most 

5 Supervisory powers of Council over the Court, I. Gesta Hen. TL 
(Ben. Abbas, Rolls ed.), 207, 208; Assize of Northampton, 7, ib. no; 
and in Stubbs, Select Charters. Jurisdiction of Curia Regis over pleas 
of land, not coming there as a matter of course, acquired by special 
order: "Quod debeat vel dominus Rex velit in curia sua deduct; Glanv. 
I. C. $. Jurisdiction of actions of contract de gratia; Bracton, fol. 100 
a; Case referred by Chancellor to Curia Regis, 38 Ed. III., Hardy Int. 
to Close Rolls, xxix (8vo. ed. 113 n). Grants of jurisdiction de gratia 
in the form of Special Commissions of oyer and terminer complained 
of Palgr. King's Council, 12, 13, pp. 27-33; Stat Westm. ii (13 Ed. 
I), Ch. 29; i Rot. Parl. 290 (8 Ed. II. No. 8); Stat. Northampton 
(2 Ed. Ill), C. 7; 2 Rot. Parl. 286, 38 Ed. III. 14, No. VI; 3 Rot. 
Parl. 161 (7 R. II. No. 43). 

As to cases terminated before the Council, see Rot. Claus. 8 Ed. I. m. 
6 dorso, in Ryley, Plac. Parl. 442, and in 2 Stubbs, Const. Hist. 263. n. 
i; 2 Rot Parl. 228 (25 Ed. III. No. 16; cf. No. 19). 3 Rot. 
Parl. 44 (3 R. II. No. 49) seems mistranslated by Parkes, Hist. Ct. of 
Ch. 39, 40. Matters at common law and of grace to be pursued before 
the Chancellor; Rot. Claus. 22 Ed. III. p. 2, m. 2 dorso, cited Hardy, 
Int. to Close Rolls, xxviii. (8vo. Ed. no), and Parkes, Hist. 
Court of Ch. 35, 36 n. See Stat. 27 Ed. HI. st. i, C. i; Stat. 36 
Ed. III. st. i, C. 9. All the reported cases in Chancery through Henry 
V., with the exceptions which have been mentioned, are trespasses, dis- 
seisins, and the like. And the want of remedy at law is generally due 
to maintenance and the power of the defendant, or in one instance 
to the technical inability of the plaintiff to sue the defendant (2 Cal. 
Ch. viii), not to the nature of the right invoked. The object of the 
repeated prayers of the Commons from Richard H. to Henry VI, 
directed against the Council and the Chancellor, was that common 
law cases should be tried in the regular courts, not that the ancient 
doctrine might prevail over a younger and rival system. See Adams, 
Equity, Introduction, xxxiii-xxxv. 

Adams, Equity, Introd. xxxv. 



4 COLLECTED LEGAL PAPERS 

important contribution of the Chancery has been its 
(borrowed) procedure. But I wish to controvert the 
error that its substantive law is merely the product 
of the procedure. And, on the other hand, I wish to 
show that the Chancery, in its first establishment 
at least, did not appear as embodying the superior 
ethical standards of a comparatively modern state 
of society correcting the defects of a more archaic 
system. With these objects in view, I proceed to 
consider the two peculiar doctrines which I have 
mentioned. 

First, as to Uses, The feoffee to uses of the early 
English law corresponds point by point to the salman 
of the early German law, as described by Beseler 
fifty years ago. 7 The salman, like the feoffee, was a 
person to whom land was transferred in order that 
he might make a conveyance according to his grant- 
or's directions. 8 Most frequently the conveyance 

7 Beseler, Erbvertragen, I 16, pp. 277 et seq., 283, 271. 

s Beseler, I. 15, 16; Heusler, Gewere, 478. Compare 2 Cal Ch. 
Hi; i id. xviii. and passim. "Pernancy of profits, execution of estates, 
and defence of the land, are the three points of the trust" or use. 
Bacon, Reading on Stat. of Uses, Works (ed. Spedding), VII. p. 401; 
i Cruise, Dig. Title XL, Ch. 2, 6; see Tit. XII., Ch. i, 3; Ch. 4, 
i. Some of the first feoff ments to the use (ad opus) of another than 
the feoffee which I have found mentioned by that name seem to have 
been a means of conveying property to the cestui que use in his absence, 
very like the earliest employment of the salman* But as the con- 
veyances are supposed to be made to servants of private persons (Bract, 
fol. 193 b) or officers of the king, it may be doubtful whether any infer- 
ence can be drawn from them; i Royal Letters, Henry III. pp. 122, 
420; cf. 421 (A.D. 1220, 1223). Compare Provisions of Oxford '(Oath 
of guardians of king's castles) in Annals of Burton (Rolls ed.), 443, and 
Stubbs, Select Charters; it seems doubtful whether the ex- 
pression ad opus was used at first in a technical sense, e.g. "castellum 
Dofris ad opus meum te jacturum" Eadmer (Rolls ed.), 7- "A& 



EARLY ENGLISH EQUITY 5 

was to be made after the grantor's death, the 
grantor reserving the use of the land to himself dur- 
ing his life. 9 To meet the chance of the salman's 
death before the time for conveyance was over, it 
was common to employ more than one, 10 and persons 
of importance were selected for the office. 11 The 
essence of the relation was the fiducia or trust re- 
posed in the fidelis manus who sometimes con- 
firmed his obligation by an oath or covenant. 13 

This likeness between the salman and the feoffee 
to uses would be enough, without more, to satisfy 
me that the latter was the former transplanted. But 
there is a further and peculiar mark which, I think, 
must convince every one, irrespective of any general 
views as to the origin of the common law. 

Beseler has shown that the executor of the early 
German will was simply a salman whose duty it 

opus ejusdem mulieris" 2 Gesta Hen. H, (Ben. Abbas, Rolls ed.) 160, 
161 ; Y. B. 3 Ed. III. 5 pi. 13 ; 2 Rot. Pad. 286 (38 Ed. III. 14 No. vi). 
But as early as 22 Ass. pi. 72, fol. 101, in the case of a gift alleged 
to be fraudulent, we find the court inquiring who took the profits, and 
on the inquest answering that the donor did, Thorp declares that the 
gift only made the donee guardian of the chattels to the use of the 
donor. See further St 7 R. II., Ch. 12. 

9 Beseler, I., 16, pp. 277 et seq.; Heusler, supra. Nearly every 
feoffment mentioned in the Calendars of Proceedings in Chancery down 
to the end of Henry VI. is for the purpose of distribution, after death. 
I Cai Ch. xxi, xsxy, xliii, liv, lv, Ivi; 2 id., Hi, xix, xx, xxi, 
xxii, xxxiii, xxxvi, etc. Abbrev. Plac. 179, col. 2, Norht rot. 15 do.; ib. 
272, H. 9 Ed. I., Suf. rot 17. Fitz. Abr. Subpcna, pi. 22, 23; Littleton, 
462. 

1 Beseler, I., p. 283 ; 2 CaL Ch. iii. 

11 Beseler, I., p. 271. 

12 Beseler, I., p. 267: "Fidei suae committens" ib. 286. Compare 
the references to good faith in all the bills in Cal. Ch. 

is Beseler, I, pp. 265-267; 2 Cal. Ch. iii, xxviii; i id. Iv. 



6 COLLECTED LEGAL PAPERS 

was to see legacies and so forth paid if the heirs re- 
fused. The keres institutus being unknown, the 
foreign law which introduced wills laid hold of the 
native institution as a means of carrying them 
into effect. Under the influence of the foreign law 
an actual transfer of the property ceased to be re- 
quired. It was enough that the testator designated 
the executors and that they accepted the trust; and 
thus it was that their appointment did not make the 
will irrevocable, as a gift with actual delivery for 
distribution after the donor's death would have 
been. 14 

There can be no doubt of the identity of the con- 
tinental executor and the officer of the same name 
described by Glanvill; and thus the connection be- 
tween the English and the German law is made cer- 
tain. The executor described by Glanvill was not 
a universal successor. Indeed, as I have shown in 
my book on the Common Law, the executor had not 
come to be so regarded, nor taken the place of the 
heir in the King's courts even as late as Bracton. 
To save space I do not copy GlanvilFs words, but 
it will be seen on reading that the function of the 
executor was not to pay debts that was the heir's 
business, 15 but to cause to stand the reasonable divi- 
sion of the testator as against the heirs. 16 The mean- 

i* Beseler, Erbvertragen, I., pp. 284-288; Brunner in I Holtzen- 
dorff, Encyclop. (3rd ed.), 216; cf. Littleton, 168, Hob. 348, Dyer, 
314 pL, 97 Finch, Law 33- 

i 5 Glanv. VII., C. 8; see XIII. C. 15; Dial, de Scaccario, IL, 18; 
Regiam Majestatem, IL, .39. 

is Glanv. VJL, C. 6~. 



EARLY ENGLISH EQUITY 7 

ing of this function will be further explained when 
I come to deal with the rights of the cestui que use. ir 
The executor had already got his peculiar name 
in GlanvilTs time, and it would rather seem that 
already it had ceased to be necessary for the testa- 
tor to give him possession or seizin. But, however 
this may be, it is certain that when the testator's 
tenements were devisable by custom, the executor 
was put in possession either by the testator in his 
lifetime or else immediately after the testator's death. 
As late as Edward I. "it seemed to the court as to 
tenements in cities and boroughs which are left by 
will (que legata sunt) and concerning which there 
should be no proceeding in the King's Court, because 
it belongs to the ecclesiastical forum, 18 that first 

17 As to the functions of the executor in the time of Bracton, see 
The Common Law, 348, 349, and further, Bracton, fol. 4oyb, "Et 
shut dantur haeredibus contra debitores et non execvtorib-us ita dantur 
actiones creditoribus contra, haeredes et non contra executores" Ibid. 
fol. o,8a, zoia, nsb; Stat. 3 Ed. I., Ch. 19. The change of the execu- 
tor to universal sucessor upon the obvious analogy of the haeres was 
inevitable j and took place shortly after Bracton wrote. It was held 
that debt lay against and for executors; Y. B. 20 & 21 Ed, I, 374; 
30 Ed. L, 238. See further, Stat. Westm. H. 13 Ed. I., C. 19, 23, 
(A.D. 1285); Fleta, IL C. 62, 8-13; C. 70, S; and C. $7, 
13, 14, copying, but modifying, Bract, fol. 6ia, b, 4o?b supra. As to 
covenant, see Y. B. 48 Ed. III., i, 2, pi. 4. The heir ceased to be bound 
unless 'named; Fleta, II. C. 62, 10; The Common Law, 348; cf. 
Fitz. Abr. Dett, pi. 139 (P. 13 Ed. HI.) . Finally, Doctor and Student, 
i. c. 19, ad finem, speaks of "the heir which in the law of England is 
called the executor." In early English, as in early German law, neither 
heir (Y. B. 32 & 33 Ed. I., 507, 508) nor executor was liable for the 
parol debts of ancestor or testator (Y. B. 22, Ed. L, 456; 41 Ed. HI., 
13, pi. 3: ii Hen. VII. 26; 12 Hen. VIIL n, pL 3; Dr. and Stud. II, 
Ch. 24), because not knowing the facts they could not wage their law: 
Y. B. 22 Ed. I., 456 ; Laband, Vermogensrechtlichen Klagen, pp. 15, 16. 

18 Cf. Bract., fol. 407b. 



8 COLLECTED LEGAL PAPERS 

after the death of the testator the will should be 
proved before the ordinary, and the will having- been 
proved, the mayor and bailiffs of the city ought to 
deliver seizin of the devised and devisable tenements 
(de tenements legatis et qu& mnt legabilia) to the 
executors of the will saving the rights of every one." 1 * 
A little later the executor ceased to intervene at all, 
and the devisees might enter directly, or if the heir 
held them out, might have the writ Ex gravi 
querela?* 

If, as I think, it is sufficiently clear that in the 
reign of Edward I. the distinction between an execu- 
tor and a feoffee to uses was still in embryo, it is 
unnecessary to search the English books for evidence 
of the first stage when the testator transferred posses- 
sion in his own lifetime. A case in 55 Henry III. 
shows executors seized for the purpose of applying 
the land to pious uses under a last will, and defending 
their seizin in their official capacity, but does not dis- 
close how they obtained possession. 21 A little earlier 

* 9 Abbr. Plac. 284, 285 (H. 19 Ed. I. Devon, rot. 51) . Note the 
likening of such tenements to chattels, Bract. 40 yb; 40 Ass. pi. 41; Co. 
Lit ma. 

20 39 Ass. pi. 6, fol. 232, 233, where there is no question of the 
executor, but special custom determines whether the devisee shall enter, 
be put in by the bailiff, or have the writ. In Littleton's time the 
devisee's right of entry was general: 167; Co. Lit. in. As to the 
writ, see 40 Ass. pi. 41. fol. 250; F. N. B. 198 L. et seq; Co. Lit. in. 
The only writ mentioned by Glanvill seems to be given to the execu- 
tor, or if there is no executor to the propinqui; lib. VII., C. 6, 7. Of 
course I am not speaking of cases where the executors were also the 
devisees, although' even in such cases there was a tendency to deny them 
any estate, if there was a trust; 39 Ass. pi. 17; Litt. 169. 

21 Abbrev. Plac. 179, col. 2; Norht, rot, 15 in dorso. 



EARLY ENGLISH EQUITY 9 

still Matthew Paris speaks of one who, being too 
weak to make a last will, makes a friend expressorem 
et execMtorem It is a little hard to distinguish 
between such a transaction and a feoffment to uses 
by a few words spoken on a death-bed, such as is 
recorded in the reign of Henry VI. 23 But the most 
striking evidence of the persistence of ancient cus- 
tom was furnished by King Edward III. in person, 
who enfeoffed his executors, manifestly for the pur- 
pose of making such distribution after his death as 
he should direct; but because he declared no trust 
at the time, and did not give his directions until 
afterwards, the judges in Parliament declared that 
the executors were not bound, or, as it was then put, 
that there was no condition. 2 * 

Gifts inter vivos for distribution after death re- 
mained in use till later times. 25 And it may be acci- 
dent, or it may be a reminiscence of ancient tradition, 
when, under Edward IV., the Court, in holding that 
executors cannot have account against one to whom 
the testator has given money to dispose of for the 
good of his soul, says that as to that money the 
donee is the executor. 26 

22 4 Matt. Paris, Chron. Maj. (Rolls ed.), 605, A.D. 1247. 

23 i Cal. Ch. xliii; S. C. Digby, Hist. Law of Real Prop, (snd ed.) 
301, 302. Cf Heusler, Gewere, 478, citing Meichelbeck (i Hist. Fris. 
Pars instrumentaria) , No. 300; "Valida egritudine depresses traditionem 
in mamts proximorum suorimt posuit, eo modo, si ipse ea egritudine 
obisset, ut vice Ulius traditionem perfecissent" 

2* 3 Rot Parl. 60, 61 (2R. U Nos. 25, 26). 

25 Babington IL Gull, I Cal. Ch. Ivi, Mayhewe v. Gardener, i Cal. 
Ch. xcix, c. 

26 Y. B. 8 Ed. IV, s> pL 12. In Mayhewe v. Gardener, i Cal. Ch. 



io COLLECTED LEGAL PAPERS 

At all events, from an early date, if not in Glan- 
vflPs time, the necessity of a formal delivery of de- 
vised land to the executor was got rid of in Eng- 
land as Beseler says that it was on the Continent. 
The law of England did in general follow its conti- 
nental original in requiring the two elements of 
traditio and investitura for a perfect conveyance. 27 
But the Church complained of the secular courts for 
requiring a change of possession when there was a 
deed. 28 And it was perhaps because wills belonged 
to the spiritual jurisdiction that the requirement was 
relaxed in the case of executors. As has been shown 
above, in the reign of Edward I. possession was not 
delivered until after the testator's death, and in that 
of Edward III. it had ceased to be delivered to them 
at all. Possibly, however, a trace of the fact that 
originally they took by conveyance may be found in 
the notion that executors take directly from the will 
even before probate, still repeated as a distinction 
between executors and administrators. 29 

It is now time to consider the position of the 
cestui que use. The situations of the feoffor or 

xcix, c, the defendant, who has received all the property of a deceased 
person by gift in trust to pay debts, etc., was decreed to pay dilapida- 
tions for which the deceased was liable. 

27 Glanv. viL, Ch. i, 3; Annals of Burton (Rolls ed,), 421 (AJX 
1258); Bracton, fols. 38a, b, 39b, i6gb, i94b, 2isb, 3, 2i4b; Abbr. 
Plac. 272 (H. 9 Ed. I), Suff. rot 17; i CaL Ch. liv, Iv; Beseler, 
Erbvertragen, I. i$, p. 261; 16, pp. 277 et seq.; Heusler, Gewere, 
pp. i, 2; Sohm. Ehschliessung, p. 82; Schulte, Lehrb. d. Deutsch. R.u. 
Rechtsgesch, 148 (5th ed.), pp. 480 et seq. 

28 Annals of Burton (Rolls ed.), 421 (AJ>. 1258). 
2 Graysbrook t>. Fox, Plowd, 275, 280, 281, 



EARLY ENGLISH EQUITY n 

donor and of the ultimate beneficiaries were differ- 
ent, and must be treated separately. First, as to the 
former. In England, as on the Continent, upon the 
usual feoffment to convey after the feoffor's death, 
the feoffor remained on the land and took the profits 
during his life. Feoffors to uses are commonly called 
pernors of profits in the earliest English statutes 
and are shown in possession by the earliest cases. 3 ' 
As Lord Bacon says in a passage cited above, per- 
nancy of the profits was one of the three points of a 
use. It was the main point on the part of the 
feoffor, as to make an estate, or convey as directed, 
was the main duty on the side of the feoffee. But 
all the German authorities agree that the pernancy 
of the profits also made the gewere, or protected 
possession, of early German law. 31 And in this, as 
in other particulars, the English law gave proof of 
its origin. In our real actions the mode of alleging 
seizin was to allege a taking of the esplees or profits. 32 
If the remedies of the ancient popular courts had 
been preserved in England, it may be conjectured 
that a cestui que use in possession would have been 

so Stat. 50 Ed. III., Ch. 6; i R. II., Ch. 9 ad fin.; 2 R. II. Stat. 2, 
Ch. 3; 15 R. II., Ch. 5; 4 Hen. IV., Ch. 7; n Hen. VI., Ch. 3, 5; i Hen. 
VII., Ch. i; 19 Hen. VII., Ch. 15; Rothenhale v. Wychingham, 2 Cal. 
Ch. 3. (Hen. V.) ; Y. B. 27 Hen. VHL 8; Plowden, 352; Litt. 462, 
464; Co. Lit. 272b So i Cruise, Big. Tit. 12, Ch. 4, I 9- "H the 
trustee be in the actual possession of the estate (which scarce ever 
happens) ." 

31 Heusler, Gewere, 51, 52, 59 J Brunner, Schwurgerichte, 169, 170; 
Laband Vermogensrechtlichen Klagen, 160; i Franken, Franzos. 
Pfandrecht, 6. 

32 Jackson, Real Actions, 348 and passim. See Statutes last 
cited, and Stat. 32 Hen. VIH, Ch. 9, 4. 



12 COLLECTED LEGAL PAPERS 

protected by the common law. 33 He was not, be- 
cause at an early date the common law was cut down 
to that portion of the ancient customs which was 
enforced in the courts of the King. The recogni- 
tions (assizes) ? which were characteristic of the royal 
tribunals, were only granted to persons who stood in 
a feudal relation to the King, 34 and to create such 
a relation by the tenure of land, something more was 
needed than de facto possession or pernancy of 
profits. In course of time the fact that the new 
system of remedies did not extend itself to all the 
rights which were known to the old law became 
equivalent to a denial of the existence of the rights 
thus disregarded. The meaning of the word "seizin" 
was limited to possession protected by the assizes, 35 
and a possession which was not protected by them 
was not protected at all. It will be remembered, 
however, that a series of statutes more and more 
likened the pernancy of the profits to a legal estate 
in respect of liability and power, until at last the 
statute of Henry VIII. brought back uses to the 
courts of common law. 36 

It is not necessary to consider whether the denial 
of the assizes to a cestui que use in possession was 
peremptory and universal from the beginning, be- 
cause the feoffor had another protection in the cove- 
nants which, in England as on the Continent, it was 

33 Franken, Franzos. Pfandr., 6. 

34 Heusler, Gewere, 126, 423, 424, 

35 Heusler, Gewere, 424. 

36 See Statutes before cited, p. n n. 30, and i R. III. Ch. i; 27 
Hen. VIIL, Ch. 10. 



EARLY ENGLISH EQUITY 13 

usual for him to take. 37 For a considerable time the 
Anglo-Norman law adhered to the ancient Prankish 
tradition in not distinguishing between contract and 
title as a ground for specific recovery, and allowed 
land to be recovered in an action of covenant, so that 
it would seem that one way or another feoffors 
were tolerably safe. 38 

But cestuis f gue use in remainder were strangers 
both to the covenant and the possession. There was 
an obvious difficulty in finding a ground upon which 
they could compel a conveyance. The ultimate 
beneficiaries seem to have been as helpless against 
the salman in the popular courts on the Continent 
as they were against the feoffee in the Curia Regis. 
Under these circumstances the Church, which was 
apt to be the beneficiary in question, lent its aid. 
Heusler thinks that the early history of these gifts 
shows that they were fostered by the spiritual power 
in its own interest, and that they were established in 



37 E. g. Rothenhale v. Wychingham, 2 CaL Ch. 3. 

38 The Common Law, 400. See further, LI. Gul. I., Ch. 23; 
Statutum Walliae, 12 Ed. I, "Breve de conventione, per quod petuntur 
aliquando mobilia, aliquando immobilia" ; "Per breve de conventione 
aliquando petitur tiberum tenementum" Fleta, II. Ch. 6s, 12 ; Y. B. 
22 Ed. I., 494, 496, 598, 600; 18 Ed. II. (Maynard), 602, 603; Fitz. 
Abr. Covenant, passim. This effect of covenant was preserved in the 
case of fines until a recent date; 2 Bl. Comm. 349, 350, and App. IV., 
i. As to a term of years, see Bract, fol. 22oa, i ; Y. B. 20 Ed. I., 
254; 47 Ed. III., 24 (cf. 38 Ed. Ill, 24); F. N. B. 145 M; Andrews 1 
Case, Cro. Elk. 214; S. C. 2 Leon. 104; and as to chattels, see Y. B. 
27 Hen. VIII., 1 6. As to the later raising of uses by way of covenant, 
see Y. B. 27 Hen. VIII, 16; Bro. Abr. Feoffments al Uses, pi. 16; 
Dyer, 55 (3) ; ib. 96 (40) ; ib. 162 (48) ; Sharington v. Strotton, Plowd 
298, 309. 



14 COLLECTED LEGAL PAPERS 

the face of a popular struggle to maintain the ancient 
rights of heirs in the family property, which was 
inalienable without their consent. 39 In view of 
the effort which the Church kept up for so long a 
time to assert jurisdiction in all matters of fidei 
laesio, it would seem that a ground for its interfer- 
ence might have been found in the fiducia which, as 
has been said, was of the essence of the relation, 
and which we find referred to in the earliest bills 
printed in the Chancery Calendars. 

This is conjecture. But it seems clear that on 
some ground the original forum for devisees was the 
Ecclesiastical Court. Glanvill states that it belongs 
to the ecclesiastical courts to pass on the reasonable- 
ness of testamentary dispositions, 40 and, while he 
shows that the executor had the King's writ against 
the heir, gives no hint of any similar right of legatees 
or devisees against the executor. The Decretals of 
Gregory disclose that a little later the Church com- 
pelled executors to carry out their testator's will, 41 
and Bracton says in terms that legatees and devisees 
of houses in town or of an usufruct could sue in the 
ecclesiastical courts. 42 As we have seen, in the case 
of houses in town the executor ceased to intervene, 
the ecclesiastical remedy against him became super- 
fluous and devisees obtained a remedy directly 

39 Heusler, Gewere, 479 et seq. See Glanv. VII., Ch. 9, where the 
Church is shown to have the settlement of the question whether the 
will was reasonably made. Cf. ib. Ch. i., 3. 

40 Glanv. VII, Ch. 6 and 8. 

** Decret. Greg. III. Tit. 26, cap, 19. AJ>. 1235, 
42 Bract, fol. 4070, 6ia, b. 



EARLY ENGLISH EQUITY 15 

against deforciants in the King's courts. But with 
regard to legacies, although after a time the Chancery 
became a competing, and finally, by St. 20 & 21 
Viet. Ch. 77, s. 23, the exclusive jurisdiction, as late 
as James I. "the Lord Chancellor Egerton would say, 
the Ecclesiastical Courts were more proper for Lega- 
cies, and sometimes would send them thither." * 3 

These courts were unable to deal with uses in the 
fulness of their later development. But the chief 
instances of feoffment upon trust, other than to the 
uses of a last will or for distribution after "death, 
of which there is any record until sometime after 
the Chancery had become a separate court under 
Edward III. were for the various fraudulent pur- 
poses detailed in the successive petitions and statutes 
which have come down to us. 44 It should be men- 
tioned too, that there are some traces of an attempt 
by cestuis que use who were strangers to the feoff- 
ment to enforce the trust by way of a condition in 
their favor, and it seems to have been put that way 
sometimes in the conveyances. 45 

For a considerable time, then, it would seem that 
both feoffors and other cestuis que use were well 

43 Nurse v. Bonnes, Choyce Cases in Ch. 48. . See further Glen tj. 
Webster, 2 Lee, 31. As to common law, see Deeks v Strutt, 5 T.R. 600; 
Atkins v. Hill, Cowper, 284, and cases cited. 

44 Petition of Barons, C. 25 (Hen. III. A.D. 1258), Annals of Burton 
(Rolls ed.), 422; id. Stubbs, Select Charters; Irish Stat. of Kilkenny, 
3 Ed. II., Ch, 4; Stat 50 Ed. III., Ch. 6; i R. II, Ch. 9; 2 R. 
II., Stat 2, Ch. 3; 7 R. n, Ch. 12; 15 R- H., Ch. 5; 4 Hen. IV., 
Ch. 7. See also Statute of Marlebridge, 52 Hen. HI., Ch. 6. 

2 Rot, ParL 79 (3 R. H., Nos. 24, 25); ib. 60, 61 (2 R. II. Nos. 
25. 26). 



16 COLLECTED LEGAL PAPERS 

enough protected. The 'first complaint we hear Is 
under Henry IV. It is of the want of a remedy 
when property is conveyed by way of affiance to 
perform the will of the grantors and feoffors and 
the feoffees make wrongful conveyances. 46 As soon 
as the need was felt, the means of supplying it was 
at hand. Nothing was easier than for the ecclesias- 
tics who presided in Chancery to carry out there, 
as secular judges, the principles which their prede- 
cessors had striven to enforce in their own tribunals 
under the rival authority of the Church. As Chan- 
cellors they were free from these restrictions which 
confined them as churchmen to suits concerning mat- 
rimony and wills. Under Henry V. we find that 
cestuis qtie use had begun to resort to equity/ 7 
whereas under Richard II. the executors and feoffees 
of Edward III. had brought their bill for instruc- 
tions before the Judges in Parliament. 48 In the 
next reign (Henry VI.) bills by cestuis que use be- 
come common. The foundations of the claim is the 
fides, the trust reposed and the obligation of good 
faith, and that circumstance remains as a mark at 
once of the Teutonic source of the right and the 
ecclesiastical origin of the jurisdiction. 

If the foregoing argument is sound, it will be seen 
that the doctrine of uses is as little the creation of 
the subpoena, or of decrees requiring personal obedi- 

46 3 Rot. Parl. 511 (4 Hen. W., No. 112, A.D. 1402). 

47 Dodd i). Browning, i Cal., Ch. xiii; Rothenhale v. Wychingham, 
2 Cal. Ch. iii. 

48 2 Rot. Parl. 60, 61 (2 R. II., Nos. 25, 26). 



EARLY ENGLISH EQUITY 17 

ence, as it Is an improvement invented in a relatively 
high state of civilization which the common law was 
too archaic to deal with. It is true, however, that 
the form of the remedy reacted powerfully upon the 
conception of the right. When the executor ceased 
to intervene between testator and devisee the connec- 
tion between devises and uses was lost sight of 
And the common law courts having refused to pro- 
tect even actual pernors of profits, as has been ex- 
plained, the only place where uses were recognized 
by that name was the Chancery. Then, by an identi- 
fication of substantive and remedial rights familiar 
to students, a use came to be regarded as merely 
a right to a subpoena. It lost all character of a 
jus in rem, and passed into the category of choses 
in action. 49 I have shown elsewhere the effect of 
this view in hampering the transfer of either the 
benefit or burdefi of uses and trusts. 50 



II. CONTRACT 

I must now say a few words of the only other 
substantive doctrine of which I have discovered any 
trace in the first period of English Equity. This is 
a view of Contract, singularly contradicting the 

49 Co. Lit. 272b; Bacon, Reading on Stat, of Uses, Works (ed. Sped- 
ding), VII., p. 398- 

50 The Common Law, ch. n; see especially pp. 399, 407-409, and, 
in addition to the books cited on p. 408, notes i and 2 ; Fitz. Abr. 
Subpena, pi. 22; Dalamere v. Barnard, Plowden, 346, 352; Pawlett v. 
Attorney-General, Hardres, 465, 469; Co. Lit. 2 tab; W. Jones, 127. 



i8 COLLECTED LEGAL PAPERS 

popular notion that the common law borrowed Con- 
sideration from the Chancery, The requirement of 
consideration in all parol contracts is simply a modi- 
fied generalization of the requirement of quid pro quo 
to raise a debt by paroi The latter, in certain cases 
at least, is very ancient, and seems to be continuous 
with the similar doctrine of the early Norman and 
other continental sources which have been much dis- 
cussed in Germany. 51 

I may remark by way of parenthesis that this 
requirement did not extend to the case of a surety, 
who obviously did not receive a quid pro quo in the 
sense of the older books and yet could bind himself 
by parol from the time of the Somma to Edward III, 

61 Somma > H., C. 26, 2, 3, in 7 Ludewig, Reliq. Manuscript 
pp. 313^3*4; Grand Coustumier, C. 88 and 90; Statutum Walliae, 12 
Ed. I; "St vero Debitor venerit, necesse habet Actor exprimere peti- 
tioner, et rationem sue petitionis, videlict, quod tenetur ei in centum 
marcts, quas sibi accomodavit, cujus solutionis dies preteriit, vel pro terra 
vel pro equo, vel p ro aliis rebus sen catallis quibuscunque sibi venditis, 
vel pro arreragiis redditus non provenientis de tenements, vel de aliis 
contractibus," etc. Y. B. 39 Ed. III., 17, 18, "issint il est quid pro quo"; 
3 Hen. VI. 36, pi. 33; ? Hen VI ^ pL 3 - Q Hen. VI. 52, pi. 35 J 
ii Hen, VI. 35, pi. 3o at foL 3 g. ^ Hen> VI ^ pl< lgi See ^Q 
"Justa debendi causa" in G lanv. X. C. 3; Dial, de Scacc. ii., C. i and 9; 
Fitz, Abr. Dett, pi. I3g . Y . B. 43 Ed. III. ji, pi. i. Form of Count 
given by i Britton ( ed . Nichols), 161, 162, pL 12; Y. B. 20 & 21 Ed. I. 
App. 488, "Marchandise" ground of debt. Sohm, Eheschliessung, p. 24; 
I Franken, Franzos. Pf an dr., 4, p. 43 ; Schulte, Reichs- u. Rechtsgesch. 
156 (4th ed.), p. 497 . Consideration is first mentioned in equity 
in 31 Hen. VI, Fitz., Abr. Subpena, pi. 23; Y. B. 3 7 Hen. VL 13, pL 
3, and by the name quid, pro quo. So in substance as to assumpsit; 
Y. B. 3 Hen. VI. 36, p i. 33 . 

The interpretation of Fleta, II, C. 60, 25 by the present writer 
in The Common .Law, 266, is rightly criticised in Pollock, Contr. ( 3 rd 
ed.), 266, as appear by comparing the more guarded language of Brae- 



ton, 



EARLY ENGLISH EQUITY 19 

and even later where the custom of various cities kept 
up the ancient law." Sohm has collected evidence 
that suretyship was a formal contract in the time of 
the folk laws, in aid of his theory that the early law 
knew only two contracts; the real, springing from 
sale or barter and requiring a quid pro quo; and the 
formal, developed from the real at an early date by 
a process which has been variously figured. 53 I do 
not attempt to weigh the evidence of the continental 
sources, but in view of the clear descent of surety- 
ship from the giving of hostages, and the fact that 
it appears as a formless contract in the early Norman 
and Anglo-Norman Law, I find it hard to believe that 
it owed its origin to form any more than to quid pro 
quo. Tacitus says that the Germans would gamble 
their personal liberty and pay with their persons if 
they lost. 54 The analogy seems to me suggestive. I 
know no warrant for supposing that the festuca was 
necessary to a bet. 

52 Somma, I., C. 62, II. C. 24; 7 Ludewig, 264, 309; Grand 
Coustum. C. 89 (cf. Bract, fol. i49b, 6) ; The Common Law, 
260, 264. See, besides authorities there cited, F. N. B. 122 K; ib. 

1 in marg., 137 C; Y. B. 43 Ed. HI, u, pi. i; g Hen. V. 14, pL 23. 
Car. M. Cap. Langob, AJD. 813, ch. 12, "Si quh pro alterius debito 
se pecuniam suam promiserit redditurum in ipsa promissione est retinen- 
dus" cited Loning, Vetragsbruch, 62, n. i. 

In 2 Gesta Hen. H. (Ben. Abbas, Rolls ed.), 136, sureties make oath 
to surrender themselves if the agreement is broken. Sohm, Eheschlies- 
sung, 48, goes so far as to argue that the oath was simply one 
substitute for the Salic formal contract But I find no evidence that 
the oath was necessary in England unless for ecclesiastical jurisdiction. 

2 Gesta Hen. II., p. 13 7- 

58 See, e.g., i Franken Franzos. Pfandr. 16, pp. 200-216; 
18, pp. 241 et seq.; ib. f 261-266. 
54 Germ. 24. 



so COLLECTED LEGAL PAPERS 

I go one step further, and venture hesitatingly to 
suggest that cases which would now be generalized 
as contract may have arisen independently of each 
other from different sources, and have persisted side 
by side for a long time before the need of generaliza- 
tion was felt or they were perceived to tend to estab- 
lish inconsistent principles. Out of barter and sale 
grew the real contract, and if the principle of that 
transaction was to be declared universal, every con- 
tract would need a quid pro quo. Out of the giving 
of hostages, familiar in Caesar's time, grew the 
guaranty of another's obligation, and if this was to 
furnish the governing analogy, every promise pur- 
porting to be seriously made would bind. But the 
two familiar contracts kept along together very 
peaceably until logic, that great destroyer of tradi- 
tion, pushed suretyship into the domain of covenant, 
and the more frequent and important real contract 
succeeded in dividing the realm of debt with instru- 
ments under seal. 55 

To return to Equity. In the Diversity of Courts 
(Chancery) it is said that "a man shall have remedy 
In Chancery for covenants made without specialty, 
If the party have sufficient witness to prove the cove- 

55 Y. B, 18 Ed. III., 13, pL 7; 44 Ed. III. 21, pi 23; 43 
Ed. HI, ii pi. i. So warranty, which had been merely an -incident of 
a sale (Lex Salica, C. 47; Glanv. X., C. 15 and 17), came to be 
looked at as a covenant, Y. B. 44 Ed. III. 27, pi. i; and at a later date 
bailment was translated into contract. As a further illustration, I may 
add that in modern times Consideration has still been dealt with by 
way of remuneration (see e.g. 2 Bl. Comm., 444; I Tidd's Practice, 
C. i, as to assumpsit), and only very recently has been resolved into 
a detriment to the promisee, in all cases. 



EARLY ENGLISH EQUITY 21 

nants, and yet he Is without remedy at the common 
law." This was in 1525, under Henry VIII.,, and 
soon afterwards the contrary was decided. 56 But the 
fact that a decision was necessary confirms the testi- 
mony of the passage quoted as to what had been the 
tradition of the Chancery. I do not propose to con- 
sider whether thus broadly stated it corresponded to 
any doctrine of early law, or whether any other cases 
could be found, besides that of the surety, In which 
a man could bind himself by simply saying that he 
was bound. For although the meaning of the tradi- 
tion had been lost in the time of Henry VIII., when 
the text-book spoke of covenants generally, the 
promise with which Equity had dealt was a promise 
per fidem. Thus, under Edward IV, 57 a subpoena 
was sued in the Chancery alleging that the defend- 
ant had made the plaintiff the procurator of his x bene- 
fice and promised him per fidem to hold him harm- 
less for the occupation, and then showing a breach. 
The Chancellor (Stillington) said that "in that he 
is damaged by the non-performance of the promise 
he shall have his remedy here." And to go back to 
the period to which this article Is devoted, we find 
in the reign of Richard II. a bill brought upon a 
promise to grant the reversion of certain lands to 
the plaintiff, setting forth that the plaintiff had come 
to London and spent money relying upon the affiance 
of the defendant, and that as he had no specialty, 
and nothing in writing of the aforesaid covenant, he 

56 Gary, Rep. in Ch. 5, Choyce Cases in Ch. 49. 

57 Y. B. 8 Ed., IV., 4, pi. 2; Fitz, Abr. Subpena, pi. 7. 



22 COLLECTED LEGAL PAPERS 

had no action at the common law. 58 This is all the 
direct evidence, but slight as it is, it is sufficient to 
prove an ancient genealogy, as I shall try to show. 

Two centuries after the Conquest there were three 
well-known ways of making a binding promise: 
Faith, Oath, and Writing. 59 The plighting of one's 
faith or troth here mentioned has been shown by 
Sohm and others to be a descendant of the Salic 
Fides facta, and I do not repeat their argument. 60 
It still survives in that repertory of antiquities, the 
marriage ceremony, and is often mentioned in the 
old books. 61 

Whether this plighting of faith (fides data, fides 
facta) was a formal contract or not in the time of 
the Plantagenets, and whether or not it was ever 

5 8 Whalen v. Huchyndin, 2 Cal. Ch. ii. 

59 Compare Letter of Gregory IX. to Henry III., Jan. 10, 1233, 
in i Royal Letters, Henry III. (Rolls ed.), p. 55 1, " Possessions 
. . , fide ac juramentis a te praestitis de non revocandis eisdem, 
sub litterarum tuarum testimoniis concessisti" with Sententia Rudolfi. 
Regis, A.D. 1277, Pertz, Monumenta, Leges II, p. 412: "Quaesivimus 
. . . utrum is gui se datione fidei vel juramento corporaliter prestito, 
vel patentibus suis litteris, ad obstagium vel solutionem alicujus debiti 
ad cerium terminum obligavit, nee in ipso termino adimplevit ad quod 
taliter se adstrinxit de jure posset . . . per iulicium occupari? Et 
promulgatum extitit communiter ab omnibus, quod is, qui modo pre- 
dicto . . . promisso non paruit, valeat, ubicumque inveniatur, auc- 
toritate iudiciaria conveniri" 

60 Lex Salica (Merkel), Ch. So; Lex Ripuaria, Ch. 58 (60), 21; 
Sohm, Eheschliessung, 48, 49, notes; I. Franken Franzos. Pfandr. 264, 
n. 2. 

61 Eadmer (Rolls ed.), 7, 8, 25; Dial, de Scacc., II. C. 19; 2 
Gesta Hen. II. (Ben. Abbas), 134-137; 3 Roger Hoved. (Rolls ed.), 
145; Glanv. VII., C. 18; X., C. 12; i Royal Letters, Henry III. 
(Rolls ed.), 308; Bract, i79b. Cf. id. i7Sa, 4o6b, etc.; Reg. Majest. 
II., C. 48, 10 ; C. 57, 10 J Abbrev. Plac. 31, col. i (2 Joh. 
Norf. rot 21) ; 22 Ass. pi. 70, fol. 101. 



EARLY ENGLISH EQUITY 23 

proceeded upon in the King's courts, it sufficiently 
appears from Glanvill and Bracton that the royal 
remedies were only conceded de gratia if ever. 62 
The royal remedies were afforded at first only by 
way of privilege and exception, and, as I have 
already shown, never extended to all the ancient 
customs which prevailed in the popular tribunals. 
But if the King failed the Church stood ready. 
For a long time, and with varying success, it claimed 
a general jurisdiction in case of laesio fidei* 3 What- 
ever the limit of this vague and dangerous claim 
it clearly extended to breach of fides data. And 
even after the Church had been finally cut down to 
marriages and wills, as shown in the last note, it 
retained jurisdiction over contracts incident to such 
matters for breach of faith, and, it seems, might 
proceed by way of spiritual censure and penance 
even in other cases. 64 

62 Glanv. X., C. 8; Bract. looa. 

63 The fluctuations of the struggle may be traced in the following 
passages: "Item generaliter omnes de fidei laesione vel juramenti trans- 
gressione quaestiones in joro ecclesiastico tractabanlur!* A.D. 1190. 
2 Diceto (Rolls ed.), 87; 2 Matt. Paris, Chron, Maj. (Rolls ed.), 368. 
"Placita de debitis quae fide interposita debentur vel absque inter- 
positione fidei sint in jmtitw Regis." Const. Clarend. C. 15 ; Glanv. 
X., C. 12; Letter of Thomas a Becket to the Pope, A. D. 1167, i Rog. 
Hoved. (Rolls ed.), 254. Agreement between Richard and the Nor- 
man clergy in 1190, Diceto and Matt. Par. ttbi supra. As to suits for 
breach of faith, outside of debts, in the Courts Christian, circa 1200, 
Abbrev. Plac. 31, col i (2 Job.), Norf. rot. 21. "Prohibetvr ecclesi- 
asticus judex tracture omnes ca-usas contra laicos, nisi sint de matrimonio 
vel testamento." A.D. 1247, 4 Matt. Paris (Rolls ed.), 614. Resistance 
to this, Annals of Burton (Rolls ed.), 417. 4235 cf. ib. 256. But this 
prohibition fixed the boundaries of ecclesiastical jurisdiction. 

<* 22 Lib. Ass., pL 70, fol. 101. Cf. Glanv. VII., C. 18, "propter 



24 COLLECTED LEGAL PAPERS 

Thus the old contracts lingered along into the 
reign of Edward III. until the common law had 
attained a tolerably definite theory which excluded 
them on substantive grounds, and the Chancery had 
become a separate Court. The clerical Chancellors 
seem for a time to have asserted successfully in a 
different -tribunal the power of which they had been 
shorn as ecclesiastics, to give a remedy for contracts 
for which the ordinary King's Courts afforded none. 
But, I think, I have now proved that in so doing they 
were not making reforms or introducing new doc- 
trines, but were simply retaining some relics of an- 
cient custom which had been dropped by the common 
law, but had been kept alive by the Church. 

mutuam affidationem quae fieri solet" Bract, fol. iysa, 4o6b, 407, 
4i2b; Y. B. 38 Hen. VI. 29, pi. 2. But covenant was the only remedy 
if the contract had been put in writing; Y. B. 45 Ed. III. 24, pi, 30. 



THE LAW 

SUFFOLK BAR ASSOCIATION DESTNER, 
FEBRUARY 5, 1885* 

MR. CHAIRMAN AND GENTLEMEN OF THE BAR: 

THE Court and the Bar are too old acquaintances 
to speak much to each other of themselves, or of 
their mutual relations. I hope I may say we are 
too old friends to need to do it. If you did not 
believe it already, it would be useless for me to 
affirm that, in the judges' half of our common work, 
the will at least is not wanting to do every duty of 
their noble office; that every interest, every faculty, 
every energy, almost every waking hour, is filled with 
their work; that they give their lives to it, more than 
which they cannot do. But if not of the 'Bench, 
shall I speak of the Bar? Shall I ask what a court 
would be, unaided? /The law is made by the Bar, 
even more than by 1 * the Bench; yet do I need to 
speak of the learning and varied gifts that have 
given the Bar of this State a reputation throughout 
the whole domain of the common law? I think I 
need not, nor of its high and scrupulous honor. The 
world has its fling at lawyers sometimes, but its very- 
denial is an admission. It feels, what I believe to 
be the truth, that of all secular professions this has 
the highest standards. 

* From Speeches (1913), printed by Little, Brown & Co. 
35 



26 COLLECTED LEGAL PAPERS 

And what a profession it is! No doubt every- 
thing is interesting when it is understood and seen 
in its connection with the rest of things. Every 
calling is great when greatly pursued. But what 
other gives such scope to realize the spontaneous 
energy of one's soul? In what other does one plunge 
so deep in the stream of life so share its passions, 
its battles, its despair, its triumphs, both as wit- 
ness and actor? 

But that is not all. What a subject is this in 
which we are united this abstraction called the 
Law 3 wherein, as in a magic mirror, we see reflected, 
not only our own lives, but the lives of all men that 
have been! When I think on this majestic theme, 
my eyes dazzle. If we are to speak of the law as 
our mistress, we who are here know that she is a 
mistress only to be wooed with sustained and lonely 
passion only to be won by straining all the facul- 
ties by which man is likest to a god. Those who, 
having begun the pursuit, turn away uncharmed, do 
so either because they have not been vouchsafed the 
sight of her divine figure, or because they have not 
the heart for so great a struggle. To the lover of 
the law, how small a thing seern the novelist's tales 
of the loves and fates of Daphnis and Chloe! How 
pale a phantom even the Circe of poetry, transform- 
ing mankind with intoxicating dreams of fiery ether, 
and the foam of summer seas, and glowing green- 
sward, and the white arms of women! For him no 
less a history will suffice than that of the moral 
life of his race. For Mm every text that he de- 



THE LAW 27 

ciphers, every aoubt that he resolves, adds a new 
feature to the unfolding panorama of man's destiny 
upon this earth. Nor will his task be done until, by 
the farthest stretch of human imagination, he has 
seen as with his eyes the birth and growth of society, 
and by the farthest stretch of reason he has under- 
stood the philosophy of its being. When I think 
thus of the law, I see a princess mightier than she 
who once wrought at Bayeux, eternally weaving into 
her web dim figures of the ever-lengthening past 
figures too dim to be noticed by the idle, too symbolic 
to be interpreted except by her pupils, but to the 
discerning eye disclosing every painful step and every 
world-shaking contest by which mankind has worked 
and fought its way from savage isolation to organic 
social life. 

But we who are here know the Law even better 
in another aspect. We see her daily, not as an- 
thropologists, not as students and philosophers, but 
as actors in a drama of which she is the providence 
and overruling power. When I think of the Law 
as we know her in the courthouse and the market, 
she seems to me a woman sitting by the wayside, 
beneath whose overshadowing hood every man shall 
see the countenance of his deserts or needs. The 
timid and overborne gain heart from her protecting 
smile. Fair combatants, manfully standing to their 
rights, see her keeping the lists with the stern and 
discriminating eye of even justice. The wretch who 
has defied her most sacred commands, and has 
thought to creep through ways where she was not, 



28 COLLECTED LEGAL PAPERS 

finds that his path ends with her, and beholds be- 
neath her hood the inexorable face of death. 

Gentlemen, I shall say no more. This is not the 
moment for disquisitions. But when for the first 
time I was called to speak on such an occasion as this, 
the only thought that could come into my mind, the 
only feeling that could fill my heart, the only words 
that could spring to my lips, were a hymn to her in 
whose name we are met here to-night to our mis- 
tress, the Law. 



THE PROFESSION OF THE LAW 

CONCLUSION OF A LECTURE DELIVERED TO UNDER- 
GRADUATES OF HARVARD UNIVERSITY, 
ON FEBRUARY 17, l886 * 

AND now, perhaps, I ought to have done. But I 
know that some spirit of fire will feel that his main 
question has not been answered. He will ask. What 
is all this to my soul? You do not bid me sell 
my birthright for a mess of pottage; what have you 
said to show that I can reach my own spiritual pos- 
sibilities through such a door as this? How can the 
laborious study of a dry and technical system, the 
greedy watch for clients and practice of shopkeepers' 
arts, the mannerless conflicts over often sordid inter^ 
ests, make out a life? Gentlemen, I admit at once 
that these questions are not futile, that they may 
prove unanswerable, that they have often seemed 
to me unanswerable. And yet I believe there is an 
answer. They are the same questions that meet 
you in any form of practical life. If a man has 
the soul of Sancho Panza, the world to him will be 
Sancho Panza's world; but if he has the soul of an 
idealist, he will make I do not say find his 
world ideal. Of course, the law is not the place 
for the artist or the poet. The law is the calling of 

* From Speeches (1913), printed by Little, Brown & Co. 
29 



3 o COLLECTED LEGAL PAPERS 

thinkers. But to those who believe with me that 
not the least godlike of man's activities is the large 
survey of causes, that to know is not less than to 
feel, I say and I say no longer with any doubt 
that a man may live greatly in the law as well as 
elsewhere; that there as well as elsewhere his thought 
may find its unity in an infinite perspective; that 
there as well as elsewhere he may wreak himself 
upon life, may drink the bitter cup of heroism, may 
wear his heart out after the unattainable. All that 
life offers any man from which to start his thinking 
or his striving is a fact. And if this universe is 
one universe, if it is so far thinkable that you can 
pass in reason from one part if it to another, it does 
not matter very much what that fact is. For every 
fact leads to every other by the path of the air. 
Only men do not yet see how, always. And your 
business as thinkers is to make plainer the way from 
some thing to the whole of things; to show the 
rational connection between your fact and the frame 
of the universe. If your subject is law, the roads 
are plain to anthropology, the science of man, to 
political economy, the theory of legislation, ethics, 
and thus by several paths to your final view of life. 
It would be equally true of any subject. The only 
difference is in the ease of seeing the way. To be 
master of any branch of knowledge, you must master 1 
those which lie next to it; and thus to know any- 
thing you must know all. 

Perhaps I speak too much the language of intellec- 
tual ambition. I cannot but think that the scope 



THE PROFESSION OF THE LAW 31 

for intellectual, as for physical adventure, is narrow- 
ing. I look for a future in which the ideal will be 
content and dignified acceptance of life, rather than 
aspiration and the passion for achievement. I see 
already that surveys and railroads have set limits 
to our intellectual wildernesses that the lion and 
the bison are disappearing from them, as from 
Africa and the no longer boundless West. But that 
undelightful day which I anticipate has not yet come. 
The human race has not changed, I imagine, so much 
between my generation and yours but that you still 
have the barbaric thirst for conquest, and there is 
still something left to conquer. There are fields still 
open for occupation in the law, and there are roads 
from them that will lead you where you will. 

But do not think I am pointing you to flowery 
paths and beds of roses to a place where brilliant 
results attend your work, which shall be at once 
easy and new. No result is easy which is worth 
having. Your education begins when what is called 
your education is over when you no longer are 
stringing together the pregnant thoughts, the "jewels 
five-words-long," which great men have given their 
lives to cut from the raw material, but have begun 
yourselves to work upon the raw material for results 
which you do not see, cannot predict, and which may 
be long in coming when you take the fact which 
life offers you for your appointed task. No man 
has earned the right to intellectual ambition until 
he has learned to lay his course by a star which he 
has never seen to dig by the divining rod for 



32 

springs he may never reach. In saying this s 

1 point to that which will make your study heroic* 
For I say to yon In all sadness of conviction^ that 
to great thoughts you must be heroes as well 

as Idealists, Only when you have worked alone 
you have felt around you a black gulf of soli- 
more isolating than that which surrounds the 
dying man, and in hope and in despair have trusted 
to your own unshaken will then only will you have 
achieved. Thus only can you gain the secret iso 
lated joy of the thinker, who knows that, a hundred 
years after lie is dead and forgotten, men who never 
heard of him will be moving to the measure of his 
thought the subtile rapture of a postponed power, 
which the world knows not because it has no external 
trappings, but which to his prophetic vision is more 
real than that which commands an army. And if 
this joy should not be yours, still it is only thus that 
you can know that you have done what it lay in 
you to do can say that you have lived, and be 
ready for the end. 



ON RECEIVING DEGREE OF 

DOCTOR OF LAWS 

YALE UNIVERSITY COMMENCEMENT^ 
JUNE 30, 1886 * 

MR. PRESIDENT AND GENTLEMEN: 

I KNOW of no mark of honor which this country 
has to offer that I should value so highly as this 
which you have conferred upon me. I accept it 
proudly as an accolade, like the little blow upon the 
shoulder from the sword of a master of war which 
in ancient days adjudged that a soldier had won his 
spurs and pledged his life to decline no combat in 
the future. 

The power of honor to bind men's lives is not less 
now than it was in the Middle Ages. Now as then 
it is the breath of our nostrils; it is that for which 
we live, for which, if need be, we are willing to die. 
It is that which makes the man whose gift is the 
power to gain riches sacrifice health and even life 
to the pursuit. It is that which makes the scholar 
feel that he cannot afford to be rich. 

One would sometimes think, from the speech of 
young men, that things had changed recently, and 
that indifference was now the virtue to be cultivated. 
I never heard any one profess indifference to a boat 
race. Why should you row a boat race? Why 

* From Speeches (1913), printed by Little, Brown & Co. 
33 



34 COLLECTED LEGAL PAPERS 

endure long months of pain In preparation for a fierce 
half -hour that will leave you all but dead? Does 
any one ask the question? Is there any one who 
would not go through all its costs, and more, for the 
moment when anguish breaks Into triumph or 
even for the glory of having nobly lost? Is life less 
than a boat race? If a man will give all the blood 
in his body to win the one, will he not spend all the 
might of his soul to prevail in the other? 

I know, Mr. President, that there is a motive above 
even honor which may govern men's lives. I know 
that there are some rare spirits who find the inspira- 
tion of every moment, the aim of every act, in holi- 
ness. I am enough of a Puritan, I think, to conceive 
the exalted joy of those who look upon themselves 
only as instruments in the hands of a higher power to 
work out its designs. But I think that most men do 
and must reach the same result under the illusion of 
self-seeking. If the love of honor is a form of that 
illusion, it is no ignoble one. If it does not lift a 
man on wings to the sky, at least it carries him above 
the earth and teaches him those high and secret 
pathways across the branches of the forest the 
travellers on which are only less than winged. 

Not the least service of this great University and 
its sister from which I come is, that by their separate 
teaching and by their mutual rivalry they have 
fostered that lofty feeling among their graduates. 
You have done all that a university can do to fan 
the spark in me. I will try to maintain the honor 
you have bestowed. 



THE USE OF LAW SCHOOLS* 

ORATION BEFORE THE HARVARD LAW SCHOOL ASSOCI- 
ATION, AT CAMBRIDGE, NOVEMBER 5, 1 886, ON 
THE 25OTH ANNIVERSARY OF HARVARD 
UNIVERSITY 

IT Is not wonderful that the graduates of the Law 
School of Harvard College should wish to keep alive 
their connection with it. About three quarters of 
a century ago it began with a Chief Justice of the 
Supreme Court of Massachusetts for its Royall Pro- 
fessor. A little later, one of the most illustrious 
judges who ever sat on the United States Supreme 
Bench Mr. Justice Story accepted a professor- 
ship in it created for him by Nathan Dane. And 
from that time to this it has had the services of great 
and famous lawyers; it has been the source of a 
large part of the most important legal literature 
which the country has produced; it has furnished a 
world-renowned model in its modes of instruction; 
and it has had among its students future chief jus- 
tices and justices, and leaders of state bars and of 
the national bar too numerous for me to thrill you 
with the mention of their names. 

It has not taught great lawyers only. Many who 
have won fame in other fields began their studies 

* From Speeches (1913), printed by Little, Brown & Co. 
SS 



3 6 COLLECTED LEGAL PAPERS 

here. Sumner and Phillips were among the Bach- 
elors of 1834. The orator whom we shall hear in a 
day or two appears in the list of 1840 alongside of 
William Story, of the Chief Justice of this State, and 
of one of the Associate Justices, who is himself not 
less known as a soldier and as an orator than he is 
as a judge. Perhaps, without revealing family 
secrets, I may whisper that next Monday's poet also 
tasted our masculine diet before seeking more easily 
digested, if not more nutritious, food elsewhere. 
Enough. Of course we are proud of the Harvard 
Law School. Of course we love every limb of Har- 
vard College. Of course we rejoice to manifest our 
brotherhood by the symbol of this Association. 

I will say no more for the reasons of our coming 
together. But by your leave I will say a few words 
about the use and meaning of law schools, especially 
of our law school, and about its methods of instruc- 
tion, as they appear to one who has had some occa- 
sion to consider them. 

A law school does not undertake to teach success. 
That combination of tact and will which gives a man 
immediate prominence among his fellows comes from 
nature, not from instruction; and if it can be helped 
at all by advice, such advice is not offered here. It 
might be expected that I should say, by way of 
natural antithesis, that what a law school does under- 
take to teach is law. But I am not ready to say 
even that, without a qualification. It seems to me 
that nearly all the education which men can get from 
others is moral, not intellectual. The main part 



THE USE OF LAW SCHOOLS 37 

of intellectual education is not the acquisition of 
facts, but learning how to make facts live. Culture, 
in the sense of fruitless knowledge, I for one abhor. 
The mark of a master is, that facts which before 
lay scattered in an inorganic mass, when he shoots 
through them the magnetic current of his thought, 
leap into an organic order, and live and bear fruit. 
But you cannot make a master by teaching. He 
makes himself by aid of his natural gifts. 

Education, other than self -education, lies mainly 
in the shaping of men's interests and aims. If you 
convince a man that another way of looking at things 
is more profound, another form of pleasure more 
subtile than that to which he has been accustomed 
if you make him really see it the very nature 
of man is such that he will desire the profounder 
thought and the subtiler joy. So I say the business 
of a law school is not sufficiently described when 
you merely say that it is to teach law, or to make 
lawyers. It is to teach law in the grand manner, 
and to make great lawyers. 

Our country needs such teaching very much. I 
think we should all agree that the passion for 
equality has passed far beyond the political or even 
the social sphere. We are not only unwilling to 
admit that any class or society is better than that 
in which we move, but our customary attitude 
towards every one in authority of any kind is that 
he is only the lucky recipient of honor or salary 
above the average, which any average man might as 
well receive as he. When the effervescence of demo- 



3 8 COLLECTED LEGAL PAPERS 

cratic negation extends its workings beyond the 
abolition of external distinctions of rank to spiritual 
things when the passion for equality is not content 
with founding social intercourse upon universal 
human sympathy, and a community of interests in 
which all may share, but attacks the lines of Nature 
which establish orders and degrees among the souls 
of men they are not only wrong, but ignobly 
wrong. Modesty and reverence are no less virtues 
of freemen than the democratic feeling which will 
submit neither to arrogance nor to servility. 

To inculcate those virtues, to correct the ignoble 
excess of a noble feeling to which I have referred, 
I know of no teachers so powerful and persuasive 
as the little army of specialists. They carry no ban- 
ners, they beat no drums; but where they are, men 
learn that bustle and push are not the equals of 
quiet genius and serene mastery. They compel 
others who need their help, or who are enlightened 
by their teaching, to obedience and respect. They 
set the examples themselves; for they furnish in the 
intellectual world a perfect type of the union of 
democracy with discipline. They bow to no one who 
seeks to impose his authority by foreign aid; they 
hold that science like courage is never beyond the 
necessity of proof, but must always be ready to prove 
itself against all challengers. But to one who has 
shown himself a master, they pay the proud rever- 
ence of men who know what valiant combat means, 
and who reserve the right to combat against their 
leader even, if he should seem to waver in the service 
of Truth, their only queen. 



THE USE OF LAW SCHOOLS 39 

In the army of which I speak, the lawyers are 
not the least important corps. For all lawyers are 
specialists. Not in the narrow sense in which we 
sometimes use the word in the profession of per- 
sons who confine themselves to a particular branch 
of practice, such as conveyancing or patents but 
specialists who have taken all law to be their prov- 
ince; specialists because they have undertaken 
to master a special branch of human knowledge 
a branch, I may add, which is more immediately 
connected with all the highest interests of man thar 
any other which deals with practical affairs. 

Lawyers, too, were among the first specialists to 
be needed and to appear in America. And I believe 
it would be hard to exaggerate the goodness of their 
influence in favor of sane and orderly thinking. 
But lawyers feel the spirit of the times like other 
people. They, like others, are forever trying to dis- 
cover cheap and agreeable substitutes for real things. 
I fear that the bar has done its full share to exalt 
that most hateful of American words and ideals, 
"smartness," as against dignity of moral feeling and 
profundity of knowledge. It is from within the bar, 
not from outside, that I have heard the new gospel 
that learning is out of date, and that the man for 
the times is no longer the thinker and the scholar, 
but the smart man, unencumbered with other artillery 
than the latest edition of the Digest and the latest 
revision of the Statutes. 

The aim of a law school should be, the aim of 
the Harvard Law School has been, not to make men 



4 o 

smart, but to make them wise In their calling to 
start them on a road which will lead them to the 
abode of the masters, A law school should be at 
once the workshop and the nursery of specialists in 
the sense which I have explained. It should obtain 
for teachers men in each generation who are produc- 
ing the best work of that generation. Teaching 
should not stop, but rather should foster, production. 
The "enthusiasm of the lecture-room/' the con- 
tagious interest of companionship, should make the 
students partners in their teachers' work. The fer- 
ment of genius in its creative moment is quickly 
imparted. If a man is great, he makes others believe 
in greatness; he makes them incapable of mean ideals 
and easy self-satisfaction. His pupils will accept no 
substitute for realities; but at the same time they 
learn that the only coin with which realities can be 
bought is life, 

Our School has been such a workshop and such a 
nursery as I describe. What men it has turned out 
I have hinted already, and do not need to say; what 
works it has produced is known to all the world. 
From ardent cooperation of student and teacher have 
sprung Greenleaf on Evidence, and Stearns on Real 
Actions, and Story's epoch-making Commentaries, 
and Parsons on Contracts, and Washburn on Real 
Property; and, marking a later epoch, Langdell on 
Contracts and on Equity Pleading, and Ames on 
Bills and Notes, and Gray on Perpetuities, and I 
hope we sooa may add Thayer on Evidence. You 
will notice that these books are very different in 



THE USE OF 41 

character from one another, but you will notice also 
how many of them have this in common that they 
have marked and largely made an epoch. 

There are plenty of men nowadays of not a hun- 
dredth part of Story 5 s power who could write as 
good statements of the law as his, or better* And 
when some mediocre fluent book has been printed, 
how often have we heard it proclaimed,, "Lo ? here 
is a greater 'than Story!" But if you consider the 
state of legal literature when Story began to write, 
from what wells of learning the discursive 
streams of his speech were fed, I think you will be 
inclined to agree with me that he has done more than 
any other English-speaking man in this century to 
make the law luminous and easy to understand. 

But Story's simple philosophizing has ceased to 
satisfy men's minds. I think it might be said with 
safety, that no man of his or of the succeeding genera- 
tion could have stated the law in a form that de- 
served to abide, because neither his nor the succeed- 
ing generation possessed or could have possessed the 
historical knowledge, had made or could have made 
the analyses of principles, which are necessary before 
the cardinal doctrines of the law can be known and 
understood in their precise contours and in their 
innermost meanings. 

The new work is now being done. Under the 
influence of Germany, science is gradually drawing 
legal history into its sphere. The facts are being 
scrutinized by eyes microscopic In intensity and 
panoramic in scope. At the same time, under the 



42 COLLECTED LEGAL PAPERS 

influence of our revived interest in philosophical 
speculation, a thousand heads are analyzing and 
generalizing the rules of law and the grounds on 
which they stand. The law has got to be stated 
over again; and I venture to say that in fifty years 
we shall have it in a form of which no man could 
have dreamed fifty years ago. And now I venture 
to add my hope and my belief, that, when the day 
comes which I predict, the Professors of the Har- 
vard Law School will be found to have had a hand 
in the change not less important than that which 
Story has had in determining the form of the text- 
books of the last half-century. 

Corresponding to the change which I say is taking 
place, there has been another change in the mode 
of teaching. How far the correspondence is con- 
scious, I do not stop to inquire. For whatever 
reason, the Professors of this School have said to 
themselves more definitely than ever before, We will 
not be contented to send forth students with nothing 
but a rag-bag full of general principles a throng 
of glittering generalities, like a swarm of little bodi- 
less cherubs fluttering at the top of one of Correg- 
gio's pictures. They have said that to make a 
general principle worth anything you must give 
it a body; you must show in what way and how 
far it would be applied actually in an actual system; 
you must show how it has gradually emerged as the 
felt reconciliation of concrete instances no one of 
which established it in terms. Finally, you must 
show its historic relations to other principles, often 



THE USE OF LAW SCHOOLS 43 

of very different date and origin, and thus set it in 
the perspective without which its proportions will 
never be truly judged. 

In pursuance of these views there have been sub- 
stituted for text-books more and more, so far as 
practicable, those books of cases which were received 
at first by many with a somewhat contemptuous 
smile and pitying contrast of good old days, but 
which now, after fifteen years, bid fair to revolution- 
ize the teaching both of this country and of England. 

I pause for a moment to say what I hope it is 
scarcely necessary for me to say that in thus giv- 
ing in my adhesion to the present methods of instruc- 
tions I am not wanting in grateful and appreciative 
recollection (alas! it can be only recollection now) 
of the earlier teachers under whom I studied. In 
my day the Dean of this School was Professor Parker, 
the ex-Chief Justice of New Hampshire, who I 
think was one of the greatest of American judges, 
and who showed in the chair the same qualities that 
had made him famous on the bench. His associates 
were Parsons, almost if not quite a man of genius, 
and gifted with a power of impressive statement 
which I do not know that I have ever seen equalled; 
and Washburn, who* taught us all to realize the 
meaning of the phrase which I already have quoted 
from Vangerow, the "enthusiasm of the lecture- 
room." He did more for me than the learning of 
Coke and the logic of Fearne could have done with- 
out his kindly ardor. 

To return, and to say a word more about the 



44 COLLECTED LEGAL PAPERS 

theory on which these books of cases are used. It 
long has seemed to me a striking circumstance, that 
the ablest of the agitators for codification, Sir James 
Stephen, and the originator of the present mode of 
teaching, Mr. Langdell, start from the same premises 
to reach seemingly opposite conclusions. The num- 
ber of legal principles is small, says in effect Sir 
James Stephen, therefore codify them; the number 
of legal principles is small, says Mr. Langdell, there- 
fore they may be taught through the cases which 
have developed and established them. Well, I think 
there is much force in Sir James Stephen's argument, 
if you can find competent men and get them to under- 
take the task; and at any rate I am not now going 
to express an opinion that he is wrong. But I am 
certain from my own experience that Mr. Langdell 
is right; I am certain that when your object is not 
to make a bouquet of the law for the public, nor 
to prune and graft it by legislation, but to plant its 
roots where they will grow, in minds devoted hence- 
forth to that one end, there is no way to be com- 
pared to Mr. Langdell's way. Why, look at it 
simply in the light of human nature. Does not a 
man remember a concrete instance more vividly 
than a general principle? And is not a principle 
more exactly and intimately grasped as the unex- 
pressed major premise of the half-dozen examples 
which mark its extent and its limits than it can be 
in any abstract form of words? Expressed or un- 
expressed, is it not better known when you have 
studied its embryology and the lines of its growth 



THE USE OF LAW SCHOOLS 45 

than when you merely see it lying dead before you 
on the printed page? 

I have referred to my own experience. During 
the short time that I had the honor of teaching in 
the School, it fell to me, among other things, to 
instruct the first-year men in Torts. With some mis- 
givings I plunged a dass of beginners straight into 
Mr. Ames's collection of cases, and we began to dis- 
cuss them together in Mr. LangdelPs method. The 
result was better than I even hoped it would be. 
After a week or two, when the first confusing novelty 
was over, I found that my class examined the ques- 
tions proposed with an accuracy of view which they 
never could have learned from text-books, and which 
often exceeded that to be found in the text-books. 
I at least, if no one else, gained a good deal from our 
daily encounters. 

My experience as a judge has confirmed the belief 
I formed as a professor. Of course a young man 
cannot try or argue a case as well as one who has 
had years of experience. Most of you also would 
probably agree with me that no teaching which a 
man receives from others at all approaches in im- 
portance what he does for himself, and that one 
who simply has been a docile pupil has got but a very 
little way. But I do think that in the thorough- 
ness of their training, and in the systematic char- 
acter of their knowledge, the young men of the 
present day start better equipped when they begin 
their practical experience than it was possible for 
their predecessors to have been. And although no 



46 COLLECTED LEGAL PAPERS 

school can boast a monopoly of promising young 
men, Cambridge, of course, has its full proportion 
of them at our bar; and I do think that the methods 
of teaching here bear fruits in their work. 

I sometimes hear a wish expressed by the im- 
patient, that the teaching here should be more practi- 
cal. I remember that a very wise and able man said 
to a friend of mine when he was beginning his pro- 
fessional life, "Don't know too much law, 77 and I 
think we all can imagine cases where the warning 
would be useful. But a far more useful thing is 
what was said to me as a student by one no less wise 
and able afterwards my partner and always my 
friend when I was talking as young men do about 
seeing practice, and all the other things which seemed 
practical to my inexperience, "The business of a 
lawyer is to know law.' 7 The professors of this Law 
School mean to make their students know law. 
They think the most practical teaching is that which 
takes their students to the bottom of what they seek 
to know. They therefore mean to make them master 
the common law and equity as working systems, and 
think that when that is accomplished they will have 
no trouble with the improvements of the last half- 
century. I believe they are entirely right, not only 
in the end they aim at, but in the way they take 
to reach that end. 

Yes, this School has been, is, and I hope will be, 
a centre where great lawyers perfect their achieve- 
ments, and from which young men, even more in- 
spired by their example than instructed by their 



THE USE OF LAW SCHOOLS 47 

teaching, go forth in their turn, not to imitate what 
their masters have done, but to live their own lives 
more freely for the ferment imparted to them here, 
The men trained in this School may not always be 
the most knowing in the ways of getting on. The 
noblest of them must often feel that they are com- 
mitted to lives of proud dependence the depend- 
ence of men who command no factitious aids to suc- 
cess, but rely upon unadvertised knowledge and 
silent devotion; dependence upon finding an appre- 
ciation which they cannot seek, but dependence 
proud in the conviction that the knowledge to which 
their lives are consecrated is of things which it con- 
cerns the world to know. It is the dependence of 
abstract thought, of science, of beauty, of poetry and 
art, of every flower of civilization, upon finding a 
soil generous enough to support it. If it does not, 
it must die. But the world needs the flower more 
than the flower needs life. 

I said that a law school ought to teach law in the 
grand manner; that it had something more to do 
than simply to teach law. I think we may claim for 
our School that it has not been wanting in greatness. 
I once heard a Russian say that in the middle class 
of Russia there were many specialists; in the upper 
class there were civilized men. Perhaps in America, 
for reasons which I have mentioned, we need special- 
ists even more than we do civilized men. Civilized 
men who are nothing else are a little apt to think 
that they cannot breathe the American atmosphere. 
But if a man is a specialist, it is most desirable that 



48 COLLECTED LEGAL PAPERS 

he should also be civilized; that he should have laid 
in the outline of the other sciences, as well as the 
light and shade of his own; that he should be reason- 
able, and see things in their proportion. Nay, more, 
that he should be passionate, as well as reasonable 
that he should be able not only to explain, but to 
feel; that the ardors of intellectual pursuit should 
be relieved by the charms of art, should be succeeded 
by the joy of life become an end in itself. 

At Harvard College is realized in some degree the 
palpitating manifoldness of a truly civilized life. Its 
aspirations are concealed because they are chastened 
and instructed; but I believe in my soul that they 
are not the less noble that they are silent. The 
golden light of the University is not confined to the 
undergraduate department; it is shed over all the 
schools. He who has once seen it becomes other 
than he was, forevermore. I have said that the best 
part of our education is moral. It is the crowning 
glory of this Law School that it has kindled in many 
a heart an inextinguishable fire. 

NOTE. The orator referred to above was James 
Russell Lowell; the poet was Oliver Wendell Holmes. 



AGENCY* 



I PROPOSE in these lectures to study the theory of 
agency at common law, to the end that it may be 
understood upon evidence, and not merely by con- 
jecture, and that the value of its principles may be 
weighed intelligently. I first shall endeavor to show 
why agency is a proper title in the law. I then shall 
give some general reasons for believing that the series 
of anomalies or departures from general rule which are 
seen wherever agency makes its appearance must be 
explained by some cause not manifest to common 
sense alone; that this cause is, in fact, the survival 
from ancient times of doctrines which in their earlier 
form embodied certain rights and liabilities of heads 
of families based on substantive grounds which have 
disappeared long since, and that in modern days 
these doctrines have been generalized into a fiction, 
which, although nothing in the world but a form of 
words, has reacted upon the law and has tended to 
carry its anomalies still farther. That fiction is, of 
course, that, within the scope of the agency, prin- 
cipal and agent are one. I next shall examine the 
early law of England upon every branch of the sub- 
ject tort, contract, possession, ratification and 
show the working of survival or fiction in each. If 

* Harvard Law Review, Vol. IV. (1891). 
49 



50 COLLECTED LEGAL PAPERS 

I do not succeed in reducing the law of all these 
branches to a common term, I shall try to show that 
at least they all equally depend upon fiction for their 
present existence. I shall prove incidentally that 
agency in its narrower sense presents only a special 
application of the law of master and servant, and 
that the peculiar doctrines of both are traceable to 
a common source. Finally I shall give my reasons 
for thinking that the whole outline of the law is the 
resultant of a conflict at every point between logic 
and good sense the one striving to work fiction out 
to consistent results, the other restraining and at 
last overcoming that effort when the results become 
too manifestly unjust. 

A part of my task has been performed and my 
general view indicated in my book on the Common 
Law. It remains to discuss the matter systemat- 
ically and in detail, giving due weight to the many 
difficulties or objections which are met with in the 
process. 

My subject extends to the whole relation of 
master and servant it is not confined to any one 
branch; so that when I choose the title "Agency," 
I do not use it in the strict sense just referred to, 
but as embracing everything of which I intend to 

treat. 

The first question proposed is why agency is a 
proper title in the law. That is to say, Does agency 
bring into operation any new and distinct rules of 
law? Do the facts which constitute agency have at- 
tached to them legal effects which are peculiar to it, 



AGENCY 51 

or is the agency only a dramatic situation to which 
principles of larger scope are applied? And if 
agency has rules of its own incapable of being fur- 
ther generalized, what are they? 

If the law went no farther than to declare a man 
liable for the consequences of acts specifically com- 
manded by him with knowledge of circumstances 
under which those consequences were the natural 
results of those acts, it would need no explanation 
and introduce no new principle. There may have 
been some difficulty in arriving at this conclusion 
when the intervening agent was a free person and 
himself responsible. Speaking without special in- 
vestigation, I do not remember any case in early 
law in which one could charge himself thus in con- 
tract or even in tort. Taking the allied case of joint 
trespassers, although it long has been settled that 
each wrong-doer is liable for the entire damages, the 
objection that "the battery of one cannot be the 
battery of the other" prevailed as late as James I. 1 
It is very possible that liability even for the com- 
manded acts of a free person first appeared as an 
extension of the liability of an owner for similar acts 
by his slave. 

But however this may be, it is plain good sense 
to hold people answerable for wrongs which they 
have intentionally brought to pass, and to recognize 
that it is just as possible to bring wrongs to pass 
through free human agents as through slaves, ani- 
mals, or natural forces. This is the true scope and 

* Sampson v. Cranfield, I Bustr. 157 (T. 9 Jac.). 



52 COLLECTED LEGAL PAPERS 

meaning of "Qui facit per alium facit per se" and 

the English law has recognized that maxim as far 
back as it is worth while to follow it. 2 So it is only 
applying the general theory of tort to hold a man 
liable if he commands an act of which the natural 
consequence, under the circumstances known to him, 
is harm to his neighbor, although he has forbidden 
the harm. If a trespass results, it is as much the 
trespass of the principal as if it were the natural, 
though unwished for, effect of a train of physical 
causes. 3 In such cases there is nothing peculiar to 
master and servant; similar principles have been 
applied where independent contractors were em- 
ployed. 4 

No additional explanation is needed for the case 
of a contract specifically commanded. A difficulty 
has been raised concerning cases where the agent has 
a discretion as to the terms of the contract, and it 
has been called "absurd to maintain that a contract 
which in its exact shape emanates exclusively from 
a particular person is not the contract of such person 
[i.e., the agent], but is the contract of another." 5 
But I venture to think that the absurdity is the other 

2 In Tort: Y. B. 32 Ed. I, 318, 320 (Harwood) ; 22 Ass. pi. 
43, fol. 94; ii Hen. IV. 90, pi. 47; 9 Hen. VI. S3> pi. 37; 21 Hen. 
VI, 39; 4 Ed. TV. 36; Dr. and Stud., II., C. 42; Seaman and Brown- 
ing's Case, 4 Leon. 123, pi. 249 (M. 31 Eliz.). Conveyance: Fitz. Abr. 
Annuitie, pi. 51 (H. 33, Ed. I.), where the maxim is quoted. Account: 
4 Inst. 109. 

* Gregory v. Piper, 9 B. & C. 59*. Ci The Common Law, 535 
54, and Lect 3 and 4. 

4 Bower v. Peate, i, Q. B. D. 321. 

e Thol, Handelsrecht, 70, cited in Wharton Agency, 6. 



AGENCY S3 

way, and that there Is no need of any more complex 
machinery in such a case than where the agent is 
a mere messenger to express terms settled by his 
principal in every detail. Suppose that the principal 
agrees to buy a horse at a price fixed by another. The 
principal makes the contract, not the referee who 
settles the price. If the agreement is communicated 
by messenger, it makes no difference. If the mes- 
senger is himself the referee, the case is still the same. 
But that is the case of an agent with discretionary 
powers, no matter how large they may be. So far as 
he expresses his principal's assent to be bound to 
terms to be fixed by the agent, he is a mere messenger; 
in fixing the terms he is a stranger to the contract, 
which stands on the same footing as if it had been 
made before his personal function began. The 
agent is simply a voice affording the marks provided 
by the principal's own expression of what he under- 
takes. Suppose a wager determined in amount as 
well as event by the spinning of a teetotum, and to 
be off if numbers are turned up outside certain limits; 
is it the contract of the teetotum? 

If agency is a proper title of our corpus juris, its 
peculiarities must be sought in doctrines that go 
farther than any yet mentioned. Such doctrines are 
to be found in each of the great departments of the 
law. In tort, masters are held answerable for con- 
duct on the part of their servants, which they not 
only have not authorized, but have forbidden. In 
contract, an undisclosed principal may bind or may 
be bound to another, who did not know of his very 



54 COLLECTED LEGAL PAPERS 

existence at the time he made the contract. By a 
few words of ratification a man may make a tres- 
pass or a contract his own in which he had no part 
in fact. The possession of a tangible object may be 
attributed to him although he never saw it, and may 
be denied to another who has it under his actual 
custody or control. The existence of these rules is 
what makes agency a proper title in the law. 

I do not mean to assume in advance that these 
rules have a common origin because they are clus- 
tered round the same subject. It would be possible 
to suggest separate reasons for each, and going 
farther still, to argue that each was no more than 
an application, even though a misapplication, of 
general principles. 

Thus, in torts it is sometimes said that the liability 
of the master is "in effect for employing a careless 
servant," repeating the reason offered by the pseudo- 
philosophy of the Roman jurists for an exceptional 
rule introduced by the praetor on grounds of public 
policy. 8 This reason is shown to be unsound by the 
single fact that no amount of care in selection will 
exonerate the master; 7 but still it might be argued 
that, whether right or wrong, this or some other 
notion of policy had led to the first of the rules which 
I selected as a peculiar, and that at most the liability 
of a master for his servant's torts is only a mistaken 
conclusion from the general theory of tort. 

6 Parke, B., in Sharrod v. London & N. W. Ry. Co., 4 Exch. 580, 
585 (1849) ; i Austin, Jurisprudence, Lect. 26, 3d Ed., p. 513. Cf. The 
Common Law, 15, 16. 

7 Dansey v. Richardson, 3 El. & Bl., 144, 161. 



AGENCY SS 

Then with regard to undisclosed principals in con- 
tract, it might be said that it was no hardship to 
hold a man bound who had commanded his servant 
to bind him. And as to the other and more difficult 
half of the doctrine, the right of an undisclosed 
principal to sue, it might be observed that it was first 
asserted in cases of debt, 8 where the principal's goods 
were the consideration of the liability, and that the 
notion thus started was afterwards extended to other 
cases of simple contract. Whether the objection to 
the analogy and to the whole rule were duly con- 
sidered or not, it might be urged, there is no connec- 
tion other than a purely dramatic one between the 
law of agency in torts and in contracts, or between 
the fact of agency and the rule, and here, as there, 
nothing more is to be found than a possibly wrong 
conclusion from the general postulates of the depart- 
ment of law concerned. 

Ratification, again, as admitted by us, the argu- 
ment would continue, merely shows that the Roman 
maxim "ratihabitio mandate* comparatur" has be- 
come imbedded in our law, as it has been from the 
time of Bracton. 

Finally, the theory of possession through servants 
would be accounted for by the servant's admission 
of his master's present right to deal with the thing 
at will, and the absence of any claim or intent to 
assert a claim on his part, coupled with the presence 
of such a claim on the part of the master. 

Scrimshire v. Alderton, 2 Strange, 1182 (H. 16 G. II). Cf. Gur- 
ratt v. Cullum (T. 9 Anne, B.R.), stated in Scott v. Surman, Wffles, 
400, at p. 405 (H. 16 G. H.) and in BuUer, N. P. 42. 



S 6 COLLECTED LEGAL PAPERS 

But the foregoing reasoning is wholly inadequate 
to justify the various doctrines mentioned, as I have 
shown in part and as I shall prove in detail hereafter. 
And assuming the inadequacy to be proved, it can- 
not but strike one as strange that there should run 
through all branches of the law a tendency to err 
in the same direction. If, as soon as the relation of 
master and servant comes in, we find the limits of 
liability for, or gain by, others' acts enlarged beyond 
the scope of the reasons offered or of any general 
theory, we not only have good ground for treating 
that relation separately, but we fairly may suspect 
that it is a cause as well as a concomitant of the ob- 
served effects. 

Looking at the whole matter analytically it is easy 
to see that if the law did identify agents with prin- 
cipals, so far as that identification was carried the 
principal would have the burden and the benefit of 
his agent's torts, contracts, or possession. So, fram- 
ing a historical hypothesis, if the starting-point of the 
modern law is the patria potestas, a little study will 
show that the fiction of identity is the natural growth 
from such a germ. 

There is an antecedent probability that the patria 
potestas has exerted an influence at least upon exist- 
ing rules. I have endeavored to prove elsewhere 
that the unlimited liability of an owner for the torts 
of his slave grew out of what had been merely a 
privilege of buying him off from a surrender to the 
vengeance of the offended party, in both the early 
Roman and the early German law. I have shown, 



AGENCY 57 

also, how the unlimited liability thus established was 
extended by the praetor in certain cases to the mis- 
conduct of free servants. 9 Of course it is unlikely 
that the doctrines of our two parent systems should 
have been without effect upon their offspring, the 
common law. 

The Roman law, it is true, developed no such 
universal doctrines of agency as have been worked 
out in England. Only innkeepers and shipowners 
(nautae, caupones, stabularii) were made answerable 
for the misconduct of their free servants by the 
praetor's edict. It was not generally possible to 
acquire rights or to incur obligations through the acts 
of free persons. 10 But, so far as rights of property, 
possession, 11 or contract 12 could be acquired through 
others not slaves, the law undoubtedly started from 
slavery and the patria potestas. 

It will be easy to see how this tended toward a 
fictitious identification of agent with principal, al- 
though within the limits to which it confined agency 
the Roman law had little need and made little use 
of the fiction. Ulpian says that the act of the family 
cannot be called the act of the paterfamilias unless 
it is done by his wish. 13 But as all the family rights 
and obligations were simply attributes of the per- 
sona of the family head, the summary -expression for 
the members of the family as means of loss or gain 

9 The Common Law, 9, 15-20. 
1 Inst 2, 9, 5J B. 44* 7 ; ty 45, i, 126, 2. 

11 Inst 2, 9, esp. II 4, 5- Cf. IX 41, i, 53- 

12 Inst 3, 17; B. 41, i, 53J !> 45, *, 3*, *7* 
is D. 43, 16, i., ||ii-i3. 



58 COLLECTED LEGAL PAPERS 

would be that they sustained that persona) pro hac 
vice. For that purpose they were one with the 
paterfamilias. Justinian's Institutes tell us that the 
right of a slave to receive a binding promise is de- 
rived ex persona domini.^ And with regard to free 
agents, the commentators said that in such instances 
two persons were feigned to be one. 15 

Such a formula, of course, is only derivative. The 
fiction is merely a convenient way of expressing rules 
which were arrived at on other grounds. The 
Roman praetor did not make innkeepers answer- 
able for their servants because "the act of the serv- 
ant was the act of the master," any more than be- 
cause they had been negligent in choosing them. He 
did so on substantive grounds of policy because of 
the special confidence necessarily reposed in inn- 
keepers. So when it held that a slave's possession 
was his owner's possession, the practical fact of the 
master's power was at the bottom of the decision. 16 

But when such a formula is adopted, it soon 
acquires an independent standing of its own. In- 
stead of remaining only a short way of saying that 
when from policy the law makes a master responsible 
for his servant, or because of his power gives him the 
benefit of his slave's possession or contract, it treats 
him to that extent as the tort-feasor, possessor, or 
contractee, the formula becomes a reason in itself for 

14 Inst. 3, 17, pr. 1 8, in the older editions. 

15 D. 45, i, 38, 17, Elzevir ed., Gothofred. note 74, Cf. D. 44, a, 
4, note 17. 

16 The Common Law, 228. 



AGENCY 59 

making the master answerable and for giving Mm 
rights. If "the act of the servant is the act of the 
master/' or master and servant are "considered as 
one person/ 5 then the master must pay for the act 
if it is wrongful, and has the advantage of it if it is 
right. And the mere habit of using these phrases, 
where the master is bound or benefited by his ser- 
vant's act, makes it likely that other cases will be 
brought within the penumbra of the same thought 
on no more substantial ground than the way of think- 
ing which the words have brought about. 

I shall examine successively the English author- 
ities with regard to agency in tort, contract, ratifi- 
cation, and possession. But some of those author- 
ities are of equal importance to every branch of 
the proposed examination, and will prove in advance 
that the foregoing remarks are not merely hypothet- 
ical. I therefore begin with citations sufficient to 
establish that family headship was recognized as a 
factor in legal rights and duties; that this notion of 
headship was extended by analogy so as to cover the 
relation of a master to freemen filling a servile place 
for the time being, and that the relations thus em- 
braced were generalized under the misleading fiction 
of identity. 

The familia, Bracton says, embraces "those who 
are regarded in the light of serfs, such as, etc. So, 
too, as well freemen as serfs, and those over whom 
one has the power of command." 17 

17 "Et etiam famUiae appettatio eos complectitur qui loco servorum 
kabentur, stcut sunt mercenary et conductitii. Item tarn liberi quam 
servi, et quibus potent imperari." Bract., foL 



60 COLLECTED LEGAL PAPERS 

In West's Symboleography a work which was 
published towards the beginning of the reign of 
James L, and which, though mainly a form book, 
gives several glimpses of far-reaching insight, we 
read as follows: 

"The person is he which either agreeth or offend- 
eth, and beside him none other. 

"And both may be bound either mediately, or 
immediately. 

"Immediately, if he which is bound doe agree. 

"Mediately, when if he, which by nature differeth 
from him, but not by law, whereby as by some bond 
he is fained to be all one person, doth contract, or 
offend, of which sort in some cases be those which 
be in our power, as a wife, a bondman, servant, a 
factor, an Attourney, or Procurator, exceeding their 
authority." 

Here we see that the patria potestas is the sub- 
stantive ground, that it is extended to cover free 
agents, who are not even domestic servants, and 
that it finds its formal expression in the fiction of 
identity. 

So, at the beginning of the next reign, it was said 
that an action for fire, due to the negligence of a 
wife, or servant, lay "vers patrem jamilias" 19 The 
extension of the liability, as shown by West, is some- 
times expressed in later books by saying that it is 
not confined to cases where the party stands in the 

is Lib, I., 3, ad fin. "Of the Fact of Man." 

19 Shelley and Barr's Case, I RoU. Abr. 2, pi. 7 (M.I Car.!). 



AGENCY 61 

relation of paterfamilias to the wrong-doer; 20 but 
this only means that the rule extends to other ser- 
vants besides domestic servants, and admits the 
analogy or starting-point. 21 

Every one is familiar with the fiction as applied 
to married women. The early law dealt with mar- 
ried women on the footing of servants. It called 
both wives and servants chattels. 22 The wife was 
said to be in the nature of a servant, 23 and husband 
and wife were only one person in law. 2 * So far was 
this identification carried, so far was the persona of 
the wife swallowed up in and made part of the hus- 
band's, that whereas, in general, assigns could not 
vouch upon a warranty unless they were expressly 
mentioned in it, 25 a husband always could vouch 
upon a warranty made to his wife before marriage. 
By marriage, as was said in Simon Simeon's case 
"it vested in the person of the husband." That is 
to say, although what actually happened was that 
the right to enforce a contract was transferred to a 
stranger, in theory of law there was no transfer, be- 
cause the stranger had become the same person as 
the contractee. 26 

20 Bac. Abr., Master and Servant, K; Smith's Master and Servant, 
3d ed, 260. 

21 Laugher v. Pointer, 5 B. & C, 547, 554 (1826). Cf. Bush t>. 
Steinman, I Bos. & P. 404 (1709). 

22 Y. B, 19 Hen. VL 3*, pL 59 J 2 RoE. Abr. 546 (D). 

23 I Roll. Abr. 2, pi. 7. 

2 * Dial, de Scaccario II., Ch. 18.; Bract., fol. 42gb; Y. B. 22 Hen. 
VI. 38, pi. 6; Litt. 168, 191; 3 Salk. 46; Com. Dig. Baron 6- Feme 
(D) ; i BL Comm. 442. 

25 Hie Common Law, 375, n. 2, 401, n. i. 

2 Simon Simeon's Case, Y. B. 30 Ed. m 14; sjc. ib. 6; 29 Ed. 



62 COLLECTED LEGAL PAPERS 

Of course the identification between husband and 
wife, although by no means absolute, was far more 
complete than that between master and menial ser- 
vant, just as in the latter case it went farther than 
in that of an agent employed for some particular 
transaction. Even in the case of villeins, while the 
lord might take advantage of their possession or 
their title, he could not take advantage of contracts 
or warranties made to them. 27 But the idea and 
its historical starting-point were the same through- 
out. When considering the later cases, the reader 
will remember that it is incontrovertably established 
that a wife was on the footing of a servant, that the 
consequences of the relation were familiarly ex- 
pressed in terms of the fiction of identity, and, there- 
fore, that the applicability of this fiction to the 
domestic relations generally must have been well 
known to the courts long before the date of the 
principal decisions, which it will be my task to 
interpret. 

I now take up the liability of a master for the 
torts of his servant at common law. This has been 
supposed in England to have been manufactured out 
of the whole cloth, and introduced by the decision 



HI. 48. I have seen no reason to change the views expressed in The 
Common Law, Lecture XL, to meet the suggestions of Prof. Ames in 
3 Harv. Law Rev. 388, n. 6. Undoubtedly the letter of credit was 
known in the reign of Henry III. i Royal Letters, Hen. III. 315. But 
the modern theory of contract applied to letters of credit, in my 
opinion, was not the theory on which assigns got the benefit of a 
warranty. Norcross v, James, 140 Mass. 188. 
2T Y. B. 22 Ass. pi. 27, fol. 93 j Co. Lit. 



AGENCY 63 

in Michael v. Alestree in the reign of Charles II. 
In view of the historical antecedents it would be very 
extraordinary if such a notion were correct. I ven- 
ture to think that it is mistaken, and that the prin- 
ciple has gradually grown to its present form from 
beginnings of the earliest date. I also doubt whether 
Michael v. Alestree is an example for the principle 
in question. It rather seems to me a case in which 
the damage complained of was the natural conse- 
quence of the very acts commanded by the master, 
and which, therefore, as I have said above, needs no 
special or peculiar doctrine to account for it. It was 
an action on the case against master and servant; 
"for that the Defendants in Lincoln' s-Inn Fields, a 
place where People are always going to and fro about 
their Business, brought a Coach with two ungovern- 
able Horses, & eux improvide incaute & absque 
debita considerations ineptitudinis loci there drove 
them to make them tractable and fit them for a 
Coach; and the Horses, because of their Ferocity, 
being not to be managed, ran upon the Plaintiff, and 
wounded him: The master was absent," 
but both defendants were found guilty. "It was 
moved in Arrest of Judgment, That no Sciens is here 
laid of the Horses being unruly, nor any Negligence 
alledged, but e contra, that the Horses were ungovern- 
able: Yet judgment was given for the Plaintiff, 
for it is alledged that it was improvide & absque 
debita consideration ineptitudinis loci; and it shall 
be intended the Master Sent the servant to train the 

ss 2 Levinz, 172; S.C. 3 Keble, 650, i Ventris, 295 (T. 28 Car, H), 



64 COLLECTED LEGAL PAPERS 

Horses there." 29 In other words, although there 
was no negligence averred in the mode of driving the 
horses at the instant of the accident, but, e contra^ 
that the horses were ungovernable, which was the 
scope of the defendant's objection, there was negli- 
gence in driving ungovernable horses for the pur- 
pose of breaking them in a public place, and that 
was averred, and was averred to have been done 
negligently. Furthermore, it was averred to have 
been done negligently by the defendant, which was 
a sufficient allegation on its face, and would be sup- 
ported by proof that the defendant, knowing the 
character of the horses, ordered his servant to break 
them in a public resort. Indeed, the very charac- 
ter of the command (to break horses) imports suffi- 
cient knowledge; and when a command is given to 
do the specified act complained of, it always may be 
laid as the act of the party giving the order. 30 

When I come to investigate the true history of 
this part of the law, notwithstanding the likelihood 
which I have pointed out that it was a continuation 
and development of what I have traced in one or 
both of the parent systems, I must admit that I am 
met with a difficulty. Even in Bracton, who writes 
under the full influence of the Roman law, I have 
failed to find any passage which distinctly asserts the 
civil liability of masters for their servants' torts apart 
from command or ratification. There is one text, to 
be sure, which seems corrupt as it sU ids and which 

29 2 Lev. 172. 
* Sup., p. 51, $a. 



AGENCY 65 

could be amended by conjecture so as to assert it. 
But as the best manuscripts in Lincoln's Inn sub- 
stantially confirm the printed reading, conjecture 
would be out of place. 31 

On the other hand, I do find an institution which 
may or may not have been connected with the Anglo- 
Saxon laws touching the responsibility of masters, 
but which, at any rate, equally connects liability of 
a different sort with family headship. 

At about the time of the Conquest, what was 
known as the Frithborh, or frankpledge, either was 
introduced or grew greatly in importance. Among 
other things, the master was made the pledge of his 
servants, to hand them over to justice or to pay the 
fine himself. "Omnes qui servientes habent, eorum 
sink francplegii" was the requirement of William's 
laws. Bracton quotes the similar provisions of Ed- 
ward the Confessor, and also says that in some 
counties a man is held to answer for the members of 
his family. 32 The quasi-criminal liability of master 
for man is found as late as Edward II. alongside of 
the other rules of frankpledge, with which this dis- 
cussion is not concerned. Fitzherbert's Abridg- 
ment 33 reads as follows: "Note that if the servant 
{sermens} of any lord while in his service (in sermcio 
suo existem) commits a felony and is convicted, 
although after the felony (the master) has not 

81 Bract., fol. lisa. 

82 "TenebUur Me, m qvtbwdam partibns, de cujus fuerint fam&to 
et manupastu." Bract., fol. i24b; Le., for the persons under his 
fatria potestas. LL. Gul. I., C. 52 ; LL. Edw. Cont, C. 21 (al. 20). 

8a Corone, pi. 428 (8 Ed. IL It cane). 



66 COLLECTED LEGAL PAPERS 

received him, he is to be amerced, and the reason 
is because he received him 'in bourgh.' " Brae- 
ton, in like manner, says that the master is bound 
"Emendare" for certain torts of his servant, 34 mean- 
ing, as I take it, to pay a fine, not damages. 

But true examples of the peculiar law of master 
and servant are to be -found before Edward II. The 
maxim respondeat superior has been applied to the 
torts of inferior officers from the time of Edward I. 
to the present day. Thus that chapter of the Statute 
of Westminster the Second, 35 which regulates dis- 
tresses by sheriffs or bailiffs, makes the officer dis- 
regarding its provisions answerable, and then con- 
tinues, "si non habeat ballivus unde reddat reddat 
superior suus." So a later chapter of the same stat- 
ute, after subjecting keepers of jails to an action of 
debt for escapes in certain cases, provides that if the 
keeper is not able to pay, his superior, who committed 
the custody of the jail to him shall be answerable by 
the same writ. 3 * So, again, the eighteenth chapter of 
the Articuli super Chartas 3T gives a writ of waste to 
wards, for waste done in their lands in the king's 
hands by escheators or sub-escheators, "against the 
escheator for his act (if he have whereof to answer), 
and if he have not, his master shall answer (fsi 
respoigne son sovereign') by like pain concerning the 

84 Bract., fol. isSb, i7ia, b, I72b. Cf. Ducange, "Emenda." 

35 St. 13 Ed. I., St. I, Ch. 2, 3. 

38 Ch. II. ad finem. "Et si custos gaole non habeat per quod 
justicietur vel unde solvat respondeat superior suus qui custodiam 
hujusmodi gaole sibi commisit per idem breve" 

87 st 28 Ed. I., Ch. 18. 



AGENCY 67 

damages, as is ordained by the statute for them that 
do waste in wardships." A case of the time of Ed- 
ward II. interpreting the above statute concerning 
jailers is given in Fitzherbert's Abridgment/ 8 and 
later similar cases are referred to in Coke's Fourth 
Institute. 39 

It may be objected that the foregoing cases are 
all statutory. But the same principle seems to have 
been applied apart from any statute except that 
which gave counties the power to elect coroners, to 
make the county of Kent answerable to the king for 
a coroner's default, as well as in other instances 
which will be mentioned later. 40 Moreover, early 
statutes are as good evidence of prevailing legal con- 
ceptions as decisions are. 

But again it may be objected that there were 
special grounds of public policy for requiring those 
who disposed of public offices of profit to appoint 
persons "for whom they will answer at their peril/' 
in the words of another similar statute as to clerks 
in the King's Courts. 41 It might be said with truth 

sa Dette, pi. 172 (M. n Ed. ID. 

39 4 Inst. 114; "45 E. 3, 9, 10, Prior datife et removeable suffer 
esckape, responded superior. 14 E. 4, Pur insufficiency del bailie 
dun libertie respondeat dominus libertatis. Vid. 44 E. 3, 13; So E. 
3, 5; 14 H. 4, 22; ii H. 6, 52; 30 H. 6, 32." 

40 See the writ of H. 14 Ed. HI, ex parte, Remem. Regis, rot. 9, in 
Scacc. in 4 Inst. 114, and less fully in 2 Inst. 175. "Et quia ipse coro- 
nator electus erat per comitatum juxta formam statuti, etc., Ua quod 
in defectu ejusdem coronatoris totus comitatus ut elector et superior^ 
etc. (tenetur), habeant regi respondere, praecip. (praeceptum fuit} nunc 
vie. quod de terns et tenementis (hominum) kujusmodi tothts comitatus 
m battiva sua fieri fac.," etc. See the other references in 4 Inst Ii4t 
and further Y. B. 49 Ed. HI. 25, 26, pL 3. 

41 St. a Hen. VI., Ch. 10. 



68 COLLECTED LEGAL PAPERS 

that the responsibility was greater than in the case 
of private servants, and it might be asked whether 
respondeat superior in its strict sense is not an inde- 
pendent principle which is rather to be deemed one 
of the causes of the modem law, than a branch from 
a common stem. It certainly has furnished us with 
one of the inadequate reasons which have been put 
forward for the law as it is that somebody must 
be held who is able to pay the damages. 

The weight of the evidence seems to me to over- 
come these objections. I think it most probable 
that the liability for under-officers was a special 
application of conceptions drawn from the family 
and the power of the family head over his servants. 
Those conceptions were in existence, as I have shown. 
From a very early date, under-officers are called ser- 
vants of their superior, as indeed it seems to be 
implied that they are, by the word "sovereign" or 
even "superior" in the statutes which have been 
cited. "Sovereign" is used as synonymous with 
master in Dyer. 42 In the Y. B., II Edward IV. i, 
pi. i, it is said, "If I make a deputy, I am always 
officer, and he performs the office in my right and as 
my servant"; and from that day to this, not only 
has the same language been repeated, 43 but, as I 
shall show, one of the chosen fields for the express 

42 Alford v. Eglisfield, Dyer, 23ob, pi. 5<5. The passage will be 
cited later in dealing with factors. See also Y. B. 27 Hen. VHL 

24, PL 3. 

Parkes t>. Mosse, Cro. Elk. 181 (E. 32 Eliz.) ; Wheteley v. 
Stone, 2 Roll. Abr. 556, pi. 14; S. C. Hobart, 180; i Bl. Comm., 
34S> 346. 



AGENCY 69 

use of the fiction of identity is the relation of superior 
and under-officer. 

Under Edward III. it was held that if an abbot has 
a wardship, and a co-canon commits waste, the abbot 
shall be charged by it, "for that is adjudged the deed 
of the abbot." ** This expression appears to me not 
only to apply the rule respondeat superior beyond the 
case of public officers, but to adopt the fiction of iden- 
tity as a mode of explaining the rule. 

An earlier record of the same reign, although it 
turned on the laws of Oleron, shows that the King's 
Court would in some cases hold masters more strictly 
accountable for their servants 5 torts than is even now 
the case. A ship-master was held liable in trespass 
de bonis asportatis for goods wrongfully taken by 
the mariners, and it was said that he was answerable 
for all trespasses on board his ship. 45 

A nearly contemporaneous statute is worth men* 
tioning, although it perhaps is to be construed as 
referring to the fines which have been mentioned 
above, or to other forfeitures, and not to civil dam- 
ages. It reads, "That no merchant nor other, of 
what condition that he be, shall lose or forfeit his 
goods nor merchandizes for the trespass and for- 
feiture of his servant, unless he do it by the command- 
ment or procurement of his master, or that he hath 
offended in the office in which his master hath set 
him, or in other manner, that the master be holden 

** Y. B. 49 Ed. HI, 25, 26, pi. 3. 

Brevia Regis in Turr. London, T. 24 Ed. EL, No. 45, Bristol, 
printed in Molloy, Book 2, Ch. 3, 16. 



70 COLLECTED LEGAL PAPERS 

to answer foi; the deed of his servant by the law- 
merchant, as elsewhere is used." 46 The statute 
limits a previously existing liability, but leaves it 
open that the master still shall be holden to answer 
for the deed of his servant in certain cases, including 
those of the servant's offending in the office in which 
the master hath set him. It is dealing with mer- 
chants, to be sure, but is another evidence that the 
whole modern law is of ancient extraction. 

It must be remembered, however, that the cases 
in which the modern doctrines could have been ap- 
plied in the time of the Year Books were exceedingly 
few. The torts dealt with by the early law 
were almost invariably wilful. They were either 
prompted by actual malevolence, or at least were 
committed with full foresight of the ensuing dam- 
age. 47 And as the judges from an early day were 
familiar with the distinction between acts done by 
a man on his own behalf and those done in the 
capacity of servant, 48 it is obvious that they could 
not have held masters generally answerable for such 
torts unless they were prepared to go much beyond 
the point at which their successors have stopped. 49 

4 St. 27 Ed. HI., St. 2, cap. 19. 

47 The Common Law, 3, 4, 101-103. I do not mean as a matter 
of articulate theory, but as a natural result of the condition of things. 
As to very early principles of liability see now Dr. B runner's most 
learned and able discussion in Sitzungsberichte der kon. Preuss. 
Akademie der Wissensch., XXXV., July 10, 1890. Uber abskhtlose 
Missethat im AUdeutschen Strafrechte. Some of the cases mentioned 
by him, such as Beowulf, 2435, had come to my notice. 

48 See, e.g., Gascoigne in Y. B. 7 Hen. IV. 34, 35, pi. i. 
* Cf. Dr. and Stud. Dial. 2, Ch. 42 (A.D. 1550). 



AGENCY 71 

Apart from frauds 50 and Intentional trespasses against 
the master's will 51 1 know of only one other case in 
the Year Books which is important to this part of 
my subject. That, however, is very important. It 
is the case concerning fire, 52 which was the precedent 
relied on by Lord Holt in deciding Turberville v. 
Stampe, 53 which in its turn has been the starting- 
point of the later decisions on master and servant. 54 
I therefore shall state it at length. 

Beaulieu sued Finglam, alleging that the defend- 
ant so negligently guarded his fire that for want of 
due guard of the same the plaintiffs houses and 
goods were burned. Markham (J.) ? "A man is held 
to answer for the act of his servant or of his guest 
(hosteller) in such case; for if my servant or my 
guest puts a candle on a beam (en un pariet), and the 
candle falls in the straw, and burns all my house, 
and the house of my neighbor also, in this case I 
shall answer to my neighbor for the damage which 
he has, quod concedebatur per curiam. Horneby 
[of counsel], Then he should have had a writ, 
Quare domum suam ardebat vel exarsit. Hull [of 
counsel], That will be against all reason to put blame 
or default in a man where there is (il ad) none in 

Y. B. 9 Hen. VI. 53, PL 37* 

i Y. B. 13 Hen. VH. 15, pL 10. Cf. Keilway, 3^, pi- 1 (M. 12 
Hen. VH.). 

52 Y. B. 2 Hen. IV. 18, pi. 6. 

52 Carthew, 425, shows that the Year Book was cited. And the 
language of Lord Holt, reported in i Ld. Raym. 264, shows that he 
had it before his mind. 

54 Brucker v. Fromont, 6 T. R. 659; M*Manus v. Crickett, i East, 
106; Patten v. Rea, 2 C B. N. S. 606. 



7 3 COLLECTED LEGAL PAPERS 

him; for negligence of his servants cannot be called 
his feasance, Thiming [C. J.], If a man kills 
(tue on occist) & mam by misfortune he will forfeit 
his goods, and he must have his charter of pardon 
de grace. A4 quod Curia concordat. Markham, 
I shall answer to my neighbor for him who enters 
iny fcmse by my teave or my knowledge, or is enter- 
tetmei (Aosfe) fey ae or by my servant, if he does, 
r aiaiy one of them does such a thing, as with a 
candle ($vme de cbmdel)^ or other thing, by which 
the lease of my neighbor is burned; but if 
a mm fmm outside my house^ agaiiast my will, puts 
the ire m the straw of nay house, or elsewhere, by 
wMda my house is burned and also the houses of my 
neighbors are burned, for that I shall not be held to 
answer to them, etc., for this cannot be said to be 
through ill-doing (male) on my part, but against my 
will." Horneby then said that the defendant would 
be ruined if this action were maintained against him. 
Thirning (C. J.)> "What is that to us? It is better 
that he should be undone wholly, than that the law 
should be changed for him. 55 Then they were at 
issue that the plaintiff's house was not burned by the 
defendant's fire." 

The foregoing case affords some ground for the 
argument which was vainly pressed in Turberville v. 
Stampe, that the liability was confined to the house. 56 
Such a limit is not unsupported by analogy. By the 
old law a servant's custody of his master's things was 

55 y. B. 2 Hen. IV. 18, pi. 6. 

w See also I Bl. Comm. 431; Noy's Maxims, Ch. 44- 



AGENC 75 

said to be the master's possession withii Ms house, 
but the servant's on a jotsraey outside of fcf 7 Se an 
innkeeper was liable for a! goods mtitita the inn 
whether he had the custody of them or not 5 * So ift 
the case which has 6een mentioned abcwe^ a master 
was said to be re^pslble for the acts of Ms servants 
on board It will be notfoeti that the 

responsibility of a householder seems to lie extended 
to his guests. From that day to this these have been 
occasional glimpses of a tendency to regard guests 
as part of the familia for the purposes of the law.** 
And in view of the fact that by earlier law if a guest 
was allowed to stop in the house three days, he was 
called koghenehine or agemkme, that is, own hme or 
servant of the host, it may be thought that we have 
here an echo of the fritkborh* But with whatever 
limits and for whatever occult causes, the responsi- 
bility of the head of the house for his servants was 
clearly recognized, and, it would seem, the identifica- 
tion of the two, notwithstanding a statement by 
counsel, as dear as ever has been made since, of the 
objections to the doctrine. 

The later cases in the Year Books are of wilful 
wrongs, as I have said, and I now pass to the subse- 
quent reports* Under Elizabeth a defendant justi- 
fied taking sheep for toll under a usage to have toll 
of strangers* sheep driven through the vill by 

BT Y. B. 21 Hen. VH. 14, pi 21 ; The Common Law, 226. 

B Y. B. 42 Ass. pi. 17, foL 260; 42 Ed. HI. u, pi. 13. 

59 Y. B. 13 Ed. W. 10, pi. 5; Southcote v. Stanley, i H. N. 

347i 250. 

o Bract., foL I24b; LL. Gul. L, Ch. AS; LL. Edw. Conf., Ch. 23. 



74 COLLECTED LEGAL PAPERS 

strangers, and If he were denied by such stranger 
driving them, to distrain them. The defendant 
alleged that the plaintiff, the owner of the sheep, was 
a stranger, but did not allege that the driver was. 
But the court sustained the plea, saying, "The driv- 
ing of the servant is the driving of the master; and 
if he be a foreigner, that sufficeth," 61 

I leave on one side certain cases which often have 
been cited for the proposition that a master is 
chargeable for his servant's torts, because they may 
be explained otherwise and make no mention of it. 68 

The next evidence of the law to which I refer is 
the passage from West's Symb oleography which was 
given in full at the outset, and which gives the 
modern doctrine of agency as well as the fiction of 
identity in their full development. There are two 
nearly contemporaneous cases in which unsuccess- 
ful attempts were made to hold masters liable for 
wilful wrongs of their servants, in one for a piracy, 65 
in the other for a fraud. 64 They are interesting 
chiefly as showing that the doctrine under discussion 

i Smith v. Shepherd, Cro. Elir., 710; M. 4* & 42 Eliz. B. R. 

2 The most important is Lord North's case, Dyer, i6ia (T. 4 
& $ Phil. & M.) ; but there the master was a bailee bound to 
return at his peril (cf. The Common Law, I7S-I79- In Dyw, 2 3&>, 
pi. 38 (E. 7 Eliz. ), a customer of a port was said to be liable to 
the penalties for a false return, although he made it through the 
concealment of his deputy. One or both of these cases are cited in 
Waltham v. Mulgar, Moore, 776; Southern v. How, Popham, 143; 
Boson v, Sandford, i Shower, 101; Lane v. Cotton, 12 Mod. 472, 
489, etc. 

ea Waltham v. Mulgar, Moore, 776 (P. 3 Jac. x.). 

* Southern t>. How, Cro. Jac. 468; s. c. Popham, 143; a 
JRep. 5, 26; Bridgman, 125, where the special verdict is set forth. 



AGENCY 75 

was in the air, but that its limits were not definitely 
fixed. The former sought to carry the rule respon- 
deat superior to the full extent of the early statutes 
and cases which have been referred to, and cited the 
Roman law for its application to public affairs. The 
latter cites Doctor and Student. West also, it will 
have been noticed, indicates Roman influence. 

Omitting one or two cases on the liability of the 
servant, which will be mentioned shortly, I come 
once more to a line of authorities touching public 
officers. I have said that although there was a differ- 
ence in the degree of responsibility, under-officers 
always have been said to be servants. 

Under Charles II. this difference was recognized, 
but it was laid down that "the high sheriff and 
under-sheriff is one officer," and on that ground the 
sheriff was held chargeable. 65 Lord Holt expressed 
the same thought: "What is done by the deputy is 
done by the principal, and it is the act of the prin- 
cipal," or, as it is put in the margin of the report, 
"Act of deputy may forfeit office of principal, be- 
cause it is quasi his act." 66 Later still, Blackstone 
repeats from the bench the language of Charles's 
day. "There is a difference between master and 
servant, but a sheriff and all his officers are considered 
in cases like this as one person." So his associate 
judge, Gould, "I consider [the under-sheriffs clerk] 
as standing in the place of, and representing the very 

5 Cremer v. Humberston, 2 Keble, 352 (H. 19 & 20 Car. II.). 
66 Lane v. Cotton, i Salk, 17, i8j s.c. i Ld. Raym. 646; Com. 100 

(p. 12 w. m.>. 



7 6 COLLECTED LEGAL PAPERS 

persons of ... the sheriffs themselves." 67 Again, 
the same idea is stated by Lord Mansfield: "For all 
civil purposes the act of the sheriffs bailiff is the act 
of the sheriff," 6S The distinction taken aBove by 
Blackstone did not prevent his saying in his Com- 
mentaries that under-officers are servants of the 
sheriff; 69 and in Woodgate v. Knatchbull/ Ashurst, 
J., after citing the words of Lord Mansfield, adds, 
"This holds, indeed, in most instances with regard 
to servants in general"; and Blackstone says the 
same thing in a passage to be quoted hereafter. 

Having thus followed down the fiction of identity 
with regard to one class of servants, I must now re- 
turn once more to Lord Holt's time. In Boson v. 
Sanford, 71 Eyres, J., says that the master of a ship 
is no more than a servant, "the power which he hath 
is by the civil law, Hob. HI, and it is plain the act 
or default of the servant shall charge the owner." 
Again, in Turberville v. Stampe, 72 Lord Holt, after 
beginning according to the Roman law that "if my 
servant throws dirt into the highway I am indictable," 
continues, "So in this case, if the defendant's servant 
kindled the fire in the way of husbandry and proper 
for his employment, though he had no express com- 

7 Saunderson t>. Baker, 3 Wilson, 309 s.c. 2 Wm. Bl. 832 ; (T. 12 G. 
IH. 1772). 

* Ackworth 0. Kempe, Douglas, 40, 42 (M. 19 Geo. HI. 1778). 

* 9 I BL Comm. 345, 34&. 
70 2 T. R. 148, 154 (1787). 
" i Shower, 101. 107 (M. 2 Wm. III.). 

72 i Ld. Raym. 264 (M. 9 Wm. in.) ; s. c. 3 id. 250, Carthew, 425, 
Com. 32, i Salk. 13, Skinner, 681, 12 Mod. 151, Comb. 459> Holt, 9. 



AGENCY 77 

mand of Ms master, yet the master shall be liable 
to an action for damages done to another by the fire; 
for it shall be intended, that the servant had author- 
ity from his master, it being for his master's benefit" 
This is the first of a series of cases decided by Lord 
Holt 73 which are the usual starting-point of modern 
decisions, and it will be found to be the chief author- 
ity relied on by cases which have become leading in 
their turn/ 4 It therefore is interesting to note that 
it only applied the principles of Beaulieu v. Finglam, 
in the Year Book 2 Henry IV., to a fire outside the 
house, that the illustration taken from the Roman 
law shows that Lord Holt was thinking of the re- 
sponsibility of a paterfamilias, and that in another 
case within three years 75 he made use of the fiction 
of identity. 

I may add, by way of confirmation, that Black- 
stone, in his Commentaries, after comparing the 
liability of the master who "hath the superintendence 
and charge of all his household" if any of his family 
cast anything out of his house into the street, with 
that of the Roman paterfamilias further observes 
that the "master may frequently be answerable for 
his servant's misbehavior, but never can shelter him- 
self from punishment by laying the blame on his 

73 Jones v. Hart, 2 Salk. 441; s.c. i Ld. Raym. 738, 739 (M. 10 
Wm. Ill); Middleton v. Fowler, i Salk 282 (M. 10 Wm. 
Ill) ; Hern v. Nichols, i Salk. 289. 

7* Brucker v. Fromont, 6 T.R. 659 ; M'Manus v. Crickett, i East, 
106; Patten v. Rea, 2 OB. KS. 606 (1857). 

75 Lane v. Cotton, i Salk. 17* 18. 

** See also Noy's Maxims, Ch. 44. 



78 COLLECTED LEGAL PAPERS 

agent. The reason of this is still uniform and the 
same; that the wrong done by the servant is looked 
upon in law as the wrong of the master himself." 7T 

There is another line of cases which affords strik- 
ing and independent evidence that the law of master 
and servant is a survival from slavery or other insti- 
tution of like effect for the present purpose, and 
that the identification of the two parties was carried 
out in some cases to its logical result. If a servant, 
although a freeman, was treated for the purposes of 
the relation as if he were a slave who only sustained 
the persona of his master, it followed that when the 
master was liable, the servant was not. There seems 
to have been a willingness at one time to accept the 
conclusion. It was said under James and Charles I. 
that the sheriff only was liable if an under-sheriff 
made a false return, "for the law doth not take notice 
of him. 78 So it was held in the latter reign that case 
does not lie against husband and wife for negli- 
gently keeping their fire in their house, "because this 
action lies on the ... custom . . . against 
patrem Camillas and not against a servant or a feme 
covert who is in the nature of a servant. 79 So Rolle 
says that "if the servant of an innkeeper sells wine 
which is corrupt, knowing this, action of deceit lies 
not against the servant, for he did this only as 



77 BL Comm. 431, 432. 

Cremer & Tookley's Case, Godbolt, 385, 3*9 (Jac. I.) ; Laicock's 
Case, Latch, 187 (H. 2 Car. I.) . 

79 Shelley & Burr, i Roll. Abr. 2, pi. 7 (M. i Car. i). Cf. I BL 
Comm. 431; Com. Dig., Action on the case for negligence, A. C. 



AGENCY 79 

servant." 80 So as to an attorney maliciously acting 
in a case where he knew there was no cause of action. 
"For that what he does is only as servant to another, 
and in the way of his calling and profession." 81 

Later this was cut down by Lord Holt to this rule 
that a servant is not liable for a neglect (i.e. a non- 
feasance) , "for they must consider him only as a 
servant"; "but for a misfeasance an action will lie 
against a servant or deputy, but not quatenus a 
deputy or servant, but as a wrong-doer," 82 That is 
to say, although it is contrary to theory to allow a 
servant to be sued for conduct in his capacity as such, 
he cannot rid himself of his responsibility as a free- 
man, and may be sued as a free wrong-doer. This, 
of course, is the law to-day. 83 Yet as late as Black- 
stone's Commentaries it was said that "if a smith's 
servant lames a horse while he is shoeing him, an 
action lies against the master, and not against the 
servant. 84 

I think I now have traced sufficiently the history 
of agency in torts. The evidence satisfies me that 
the common law has started from the patria potestas 

80 Roll. Abr. 95 (T) citing no authority, and adding, "Contra, 
g Hen. VI., 53b." The contradiction is doubtful. 

81 Anon., I Mod. 209, 210 (H. 27 & 28, Car II.). Cf. Barker v. 
Braham, 2 W. BL 866, 869. 

8 2 Lane t>. Cotton, 12 Mod. 472, 4&8 T. 13 W. HI. Cf. Mors v. 
Slew, 3 Keble, 135 (23 & 24 Car. IL, 1671, 1672); also Mires t>. 
Solebay, a Mod. 242, 244 (T. 29 Car. II.), for an exception by 
Scroggs, C. J. 

83 Sands v. ChEds, 3 Lev. 351, 35^; Perkins t>. Smith, 3 Wilson, 328 



i BL Comm. 431 ; Bac. Abr., Master and Servant, K. It is enough 
amply to refer to the law as to the liability of married women. 



80 COLLECTED LEGAL PAPERS 

and the firthborh, whether following or simply 
helped by the Roman law, it does not matter, and 
that it has worked itself out to its limits through the 
formula of identity. It is true that liability for an- 
other as master or principal is not confined to family 
relations; but I have shown partly, and shall com- 
plete the proof later, that the whole doctrine has been 
worked out in terms of master and servant and on 
the analogies which those terms suggested. 



AGENCY.* 
II 

THE history of agency as applied to contract is 
next to be dealt with. 1 In this branch of the law there 
is less of anomaly and a smaller field in which to 
look for traces of fiction than the last. A man is not 
bound by his servant's contracts unless they are 
made on his behalf and by his authority, and that 
he should be bound then is plain common-sense. It 
is true that in determining how far authority extends, 
the question is of ostensible authority and not of 
secret order. But this merely illustrates the general 
rule which governs a man's responsibility for his 
acts throughout the law. If, under the circumstances 
known to him, the obvious consequence of the prin- 
cipal's own conduct in employing the agent is that 
the public understand him to have given the agent 
certain powers, he gives the agent these powers. And 
he gives them just as truly when he forbids their 
exercise as when he commands it. It seems always 
to have been recognized that an agent's ostensible 
powers were his real powers! 2 and on the other hand 
it always has been the law that an agerit could not 

* Harvard Law Review. Vol. V. No. i. 

1 4 Sarv. Law Rev. 34$. 

2 Y. B. 27 Ass., pi. 5, fol. 133; Anon., i Shower, 95; Nickson *. 
Brohan, 10 Mod. 109, etc. 

Si 



82 COLLECTED LEGAL PAPERS 

bind his principal beyond the powers actually given in 
the sense above explained. 

There is, however, one anomaly introduced by 
agency even into the sphere of contract, the rule 
that an undisclosed principal may sue or be sued on 
a contract made by an agent on his behalf; and this 
must be examined, although the evidence is painfully 
meagre. The rule would seem to follow very easily 
from the identification of agent and principal, as I 
shall show more fully in a moment. It is there- 
fore well to observe at the outset that the power of 
contracting through others, natural as it seems, 
started from the family relations, and that it has been 
expressed in the familiar language of identification. 

Generally speaking, by the Roman law contractual 
rights could not be acquired through free persons 
who were strangers to the family. But a slave de- 
rived a standing to accept a promise to his master ex 
persona domini? Bracton says that contracts can be 
accepted for a principal by his agent; but he starts 
from the domestic relations in language very like that 
of the Roman jurisconsults. An obligation may be 
acquired through slaves or free agents in our power, 
if they take the contract in the name of their master. 4 

It was said under Henry V. that a lease made by 

3 Inst. 3. 17, pr. See Gaius, 3, 164-166. 

* "Videndum etiam est per quas personas acquirator obligatio, ct 
sdendum quod per procuratores, et per liberos, quos sub potestate 
nostra habemus, et per nosmetipsos, et filios nostros et per liberos 
homines servientes nostros." Bract., foL 100 6. So, "Etiam dormienti 
per servum acquiritur, ut per procuratorem, si nomine domini stipule- 
tur." Bract., fol. 28 b. 



AGENCY 83 

the seneschal of a prior should be averred as the lease 
of the prior/ and under James L it was held that an 
assumpsit to a servant for his master was properly 
laid as an assumpsit to the master. 6 West's Sym- 
boleography belongs to the beginnings of the same 
reign. It will be remembered that the language which 
has been quoted from that work applies to contracts 
as well as to torts. A discussion in the Year Book, 
8 Edward IV. ? fol. n ? is thus abridged in Popham: 
"My servant makes a contract, or buys goods to my 
use; I am liable, and it is my act." 7 Baron Parke ex- 
plains the requirement that a deed executed by an 
agent should be executed in the name of his princi- 
pal, in language repeated from Lord Coke: "The at- 
torney is . . . put in place of the principal and repre- 
sents his person. 3 ' 8 Finally, Chitty, still speaking of 
contracts, says, like West, that "In point of law the 
master and servant, or principal and agent, are con- 
sidered as one and the same person." * 

I have found no early cases turning upon the law 
of undisclosed principal. It will be remembered that 
the only action on simple contract before Henry VI., 
and the chief one for a good while after, was debt, 

5 Y. B, s H. v. 4, pi. 17. 

Seignior & Wolmer's Case, Godbolt, 360 (T. 21 Jac.). Cf. Jordan's 
Case, Y. B. 27 EL VIII. 24, pi. 3. 

7 Drope v. Theyar, Popham, 178, 179 (P. 2 Car. I.). 

8 Hunter v. Parker, 7 M. & W. 322, 343 (1840) ; Combes's Case, 9 
Rep, 75 a, 76 6, 77 (T. n Jac.). The fiction of Identity between prin- 
ciple and agent was fully stated by Hobbes, who said many keen things 
about the law. Leviathan, Part I. Ch. 16. "Of Persons, Authors, and 
things Personated." Also De Homine, I. C. 15. De Homine Fictitio. 

9 i BL Comm. 429, note. 



84 COLLECTED LEGAL PAPERS 

and that this was founded on a quid pro quo received 
by the debtor. Naturally, therefore, the chief ques- 
tion of which we hear in the earlier books is whether 
the goods came to the use of the alleged debtor. 10 It 
is at a much later date, though still in the action of 
debt, that we find the most extraordinary half of the 
rule under consideration first expressly recognized. 
In Scrimshire v. Alderton u (EL 16 G. II.) a suit was 
brought by an undisclosed principal against a pur- 
chaser from a del credere factor. Chief Justice Lee 
"was of opinion that this new method [i.e., of the 
factor taking the risk of the debt for a larger com- 
mission] had not deprived the farmer of his remedy 
against the buyer." And he was only prevented 
from carrying out his opinion by the obstinacy of the 
jury at Guildhall. The language quoted implies that 
the rule was then well known, and this, coupled with 
the indications to be found elsewhere, will perhaps 
warrant the belief that it was known to Lord Holt. 

Scott v. Surman, 12 decided at the same term that 
Scrimshire v. Alderton was tried, refers to a case of 
T. 9 Anne, Gurratt v. Cullum, 13 in which goods were 
sold by factors to J. S. without disclosing their prin- 
cipal. The factors afterwards went into bankruptcy. 
Their assignee collected the debt, and the principal 
then sued him for the money. "And this matter being 

1 Fitz. Abr. Dett, pi. 3 (T. 2 R. II.) . Cf. Alford v. Eglisfield, Dyer, 
230 b (T. 6 Eliz.), and notes. 

11 2 Strange, 1182. 

" Willes, 400, at p. 405 (H. 16 G. H.). 

i 3 Also reported in Buller, N. P. 42. Cf. WMtecomb v. Jacob, I 
Salk. 160 (T. 9 Anne). 



AGENCY 85 

referred by Holt for the opinion of the King's Bench, 
judgment was given on argument for the plaintiff. 
Afterwards at Guildhall, before Lord Chief Justice 
Parker, this case was cited and allowed to be law, 
because though it was agreed that payment by J. S. 
to [the factors] with whom the contract was made 
would be a discharge to J. S. against the principal, 
yet the debt was not in law due to them, but to the 
person whose goods they were . . . and being paid 
to the defendant who had no right to have it, it must 
be considered in law as paid for the use of him to 
whom it was due." This explanation seems to show 
that Chief Justice Parker understood the law in the 
same way as Chief Justice Lee, and, if it be the true 
one, would show that Lord Holt did also. I think the 
inference is somewhat strengthened by other cases 
from the Salkeld MSS. cited in Buller's Nisi Prius.^ 
Indeed I very readily should believe that at a much 
earlier date, if one man's goods had come to another 
man's hand by purchase, the purchaser might have 
been charged, although he was unknown and had 
dealt through a servant, 15 and that perhaps he might 
have been, in the converse case of the goods belong- 
ing to an undisclosed master. 16 

i* Gonzales i>. Sladen: Thorp v. How (H. 13 W. III.) ; Buller, N.P. 
130. 

15 See Goodbaylie's Case, Dyer, 230 6, pi. 56, n.; Truswell v. Middle- 
ton, 2 Roll. R. 269, 270. Note, however, the insistence on the servant 
being known as such in Fitz. Abr. Dett f pi. 3; 27 Ass., pi. 5, fol. 133* 

16 Consider the doubt as to ratifying a distress made "generally not 
showing his intent nor the cause wherefore he distrained" in Godbolt, 
109, pi. 129 (M. 28 & 29 Eliz.). Suppose the case had been contract 
instead of tort, and with actual authority, would the same doubt have 
been felt? 



86 COLLECTED LEGAL PAPERS 

The foregoing cases tend to show, what is quite 
probable, that the doctrine under discussion began 
with debt. I do hot wish to undervalue the argument 
that may be drawn from this fact, that the law of un- 
disclosed principal has no profounder origin than the 
thought that the defendant, having acquired the 
plaintiff's goods by way of purchase, fairly might be 
held to pay for them in an action of contract, and that 
the rule then laid down has been extended since to 
other contracts. 17 

But suppose what I have suggested be true, it does 
not dispose of the difficulties. If a man buy's B.'s 
goods of A., thinking A. to be the owner, and B. then 
sues him for the price, the defendant fairly may ob- 
ject that the only contract which he has either con- 
sented or purported to make is a contract with A., 
and that a stranger, to both the intent and the form 
of a voluntary obligation cannot sue upon it. If 
the contract was made with the owner's consent, let 
the contractee bring his action. If it was made with- 
out actual or ostensible authority, the owner's right's 
can be asserted in an action of tort. The general rule 
in case of a tortious sale is that the owner cannot 
waive the tort and sue in assumpsit. 18 Why should 
the fact that the seller was secretly acting in the 
owner's behalf enlarge the owner's rights as against 
a third person? The extraordinary character of the 
doctrine is still clearer when it is held that under a 

17 Sims v. Bond, 5 B. & Ad. 389, 393 (1833)- Cf. Bateman v. 
Phillips, 15 East, 272 (1812). 
" Berkshire Glasc Co. v. Wolcott, 2 Allen (Mass.) 227. 



AGENCY 87 

contract purporting to be made with the plaintiff and 
another jointly, the plaintiff may show that the two 
ostensible joint parties were agents for himself alone, 
and thus set up a several right in the teeth of the 
words used and of the ostensible transaction, which 
gave him only a joint one. 19 

Now, if we apply the formula of identification and 
say that the agent represents the person of the owner, 
or that the principal adopts the agent's name for the 
purposes of that contract, we have at once a formal 
justification of the result. I have shown that the 
power of contracting through agents started from 
the family, and that principal and agent were identi- 
fied in contract as well as in tort. I think, therefore, 
that the suggested explanation has every probability 
in its favor. So far as Lord Holt is concerned, I may 
add that in Gurratt v. Cullum the agent was a factor, 
that a factor in those days always was spoken of as 
a servant, and that Lord Holt was familiar with the 
identification of servant and master. If he was the 
father of the present doctrine, it is fair to infer that 
the technical difficulty was consciously or uncon- 
sciously removed from his mind by the technical fic- 
tion. And the older we imagine the doctrine to be, 
the stronger does a similar inference become. For 
just in proportion as we approach the archaic stage 
of the law, the greater do we find the technical obsta- 
cles in the way of any one attempting to enforce a 
contract except the actual party to it, and the greater 

19 Spurr v. Cass, L. R. 5 Q. B. 656. See further, Sloan v. Merrill, 135 
Mass. 17, 19. 



88 COLLECTED LEGAL PAPERS 

therefore must have been the need of a fiction to over- 
come them. 20 

The question which I have been considering arises 
in another form with regard to the admission of oral 
evidence in favor of or to charge a principal, when a 
contract has been made in writing, which purports 
on its face to be made with or by the alleged agent 
in person. Certainly the argument is strong that 
such evidence varies the writing, and if the Statute 
of Frauds applies, that the statute is not satisfied un- 
less the name of the principal appears. Yet the con- 
trary has been decided. The step was taken almost 
sub silentio^ But when at last a reason was offered, 
it turned on, or at least was suggested by, the notion 
of the identity of the parties. It was in substance 
that the principal "is taken to have adopted the name 
of the [agent] as his own, for the purpose of such con- 
tracts/ 5 as it was stated by Smith in his Leading 
Cases, paraphrasing the language of Lord Denman in 
Trueman v. Loder. 22 

I gave some evidence at the beginning of this dis- 
cussion, that notions drawn from the familia were 

20 Cf. The Common Law, Ch. x. and xt "Unsere heutigen Ans- 
chauungen . . . konnen sich nur schwer in urspriingliche Rechts- 
zustande hineinfinden, in welchen . . . bei Contrahirung oder Zahlung 
einer Schuld die handelnden Subjecte nicht als personae fungibiles 
galten." B runner, Zulassigkeit der Anwaltschaft im franzos, etc. Rechte. 
(Zeitschr. fiir vergleich. Rechtswissenschaft) Norcross v. James, 140 
Mass. 188, 189. 

21 Bateman v. Phillips, 15 East, 272 (1812) ; Garrett v. Handley, 4 
B. & C. 664 (1825) ; Higgins v. Senior, 8 M, & W. 834, 844 (1841). 

22 ii Ad. & El. 595; s. c. 3 P. & D. 267, 271 (1840) ; 2 Sm. L. C., 
8th ed., 408, note to Thompson v. Davenport; Byington v. Simpson, 134 
Mass. 169, 170. 



AGENCY 89 

applied to free servants, and that they were extended 
beyond the domestic relations. All that I have quoted 
since tends in the same direction. For when such 
notions are applied to freemen in a merely contractual 
state of service it is not to be expected that their in- 
fluence should be confined to limits which became 
meaningless when servants ceased to be slaves. The 
passage quoted from Bracton proved that already 
in his day the analogies of domestic service were 
applied to relations of more limited subjection. I 
have now only to complete the proof that agency in 
the narrower sense, the law familiar to the higher 
and more important representatives employed in 
modern business, is simply a branch of the law of 
master and servant. 

First of the attorney. The primitive lawsuit was 
conducted by the parties in person. Counsel, if they 
may be called so, were very early admitted to con- 
duct the formal pleadings in the presence of the party 
who was thus enabled to avoid the loss of his suit, 
which would have followed a slip on his part in utter- 
ing the formal words, by disavowing the pleading of 
his advocate. But the Prankish law very slowly 
admitted the possibility of giving over the conduct 
of a suit to another, or of its proceeding in the absence 
of the principals concerned. Brunner has traced the 
history of the innovation by which the appointment 
of an attorney (i.e., loco positus) came generally to 
be permitted, with his usual ability. It was brought 
to England with the rest of the Norman law, was 
known already to Glanvill, and gradually grew to 



go COLLECTED LEGAL PAPERS 

its present proportions. The question which I 
have to consider, however, is not the story of its in- 
troduction, but the substantive conception under 
which it fell when it was introduced. 

If you were thinking of the matter a priori it would 
seem that no reference to history was necessary, at 
least to explain the client's being bound in the cause 
by his attorney's acts. The case presents itself like 
that of an agent authorized to make a contract in such 
terms as he may think advisable. But as I have 
hinted, whatever common-sense would now say, even 
in the latter case it is probable that the power of con- 
tracting through others was arrived at in actual fact 
by extending the analogy of slaves to freemen. And 
it is at least equally clear that the law had need of 
some analogy or fiction in order to admit a represen- 
tation in lawsuits. I have given an illustration from 
Iceland in my book on the Common Law. There the 
conduct of a suit was transferred from Thorgier to 
Mord "as if he were the next of kin." 23 In the 
Roman law it is well known that the same difficulty 
was experienced. The English law agreed with the 
Northern sources in treating attorneys as sustaining 
the persona of their principal. The result may have 
been worked out in a different way, but that funda- 
mental thought they had in common. I do not in- 
quire into the recondite causes, but simply observe 
the fact. 

Bracton says that the attorney represents the 

23 The Common Law, 359. See Brunner, in i Holtzendorff, Encyc. 
II. 3, A. i, 2, 3d ed., p. 166. i Stubbs, Const. Hist. 82. 



AGENCY 91 

persona of his principal in nearly everything. 2 * He 
was "put in the place of" his principal, loco po situs 
(according to the literal meaning of the word 
attorney}, as every other case in the Abbreviatio 
Placitorum shows. The essoign de malo lecti had 
reference to the illness of the attorney as a matter 
of necessity. 25 But, in general, the attorney was dealt 
with on the footing of a servant, and he is called so as 
soon as his position is formulated. Such is the lan- 
guage of the passage in West's Symb oleography 
which I have quoted above, and the anonymous case 
which held an attorney is not liable for maliciously 
acting in a cause which he knew to be unfounded. 28 
When, therefore, it is said that the "act of the attor- 
ney is the act of his client," it is simply the familiar 
fiction concerning servants applied in a new field. On 
this ground it was held that the client was answer- 
able in trespass, for assault and false imprisonment, 
where his attorney had caused the party to be 
arrested on a void writ, wholly irrespective, it would 
seem, of any actual command or knowledge on the 
part of the client; 27 and in trespass quare clausum, 
for an officer's breaking a man's house and taking his 
goods by command of an attorney's agent without the 
actual knowledge either of the client or the attorney. 
The court said that the client was "answerable for the 

24 "Attornatus fere in omnibus personam domini representat. M Bract., 
fol. 342 a. See LL. Hen. I. 42, 2. 

25 Bract., fol. 342 a. Cf. Glanv. XI., C. 3. 

26 Anon., i Mod. 209, 210 (H. 27 & 28 Car. H). 

27 Parsons v. Loyd, 3 Wils. 341, 345; s. c. 2 W. Bl. 845 (M. 13 G. 
m. 1772) ; Barker v. Braham, 2 W. BL 866, 868, 869; s. c. 3 WHS. 368. 



92 COLLECTED LEGAL PAPERS 

act of his attorney, and that [the attorney] and his 
agent [were] to be considered as one person." 2S 

The only other agent of the higher class that I 
think it necessary to mention is the factor. I have 
shown elsewhere that he is always called a servant in 
the old books. 29 West's language includes factors as 
well as attorneys. Servant, factor, and attorney are 
mentioned in one breath and on a common footing 
in the Year Book, 8 Edward IV., folio n b. So 
Dyer, 30 "if a purveyor, factor, or servant make a 
contract for his sovereign or master." So in trover 
for money against the plaintiff's "servant and fac- 
tor." 31 It is curious that in one of the first attempts 
to make a man liable for the fraud of another, the 
fraudulent party was a factor. The case was argued 
in terms of master and servant. 32 The first author- 
ity for holding a master answerable for his servant's 
fraud is another case of a factor. 33 Nothing is said of 
master and servant in the short note in Salkeld. But 
in view of the argument in Southern v. How, just re- 
ferred to, which must have been before Lord Holt's 
mind, and the invariable language of the earlier 
books, including Lord Holt's own when arguing 
Morse v. Slue ("Factor, who is servant at the master's 

28 Bates v. Pilling, 6 B. & C. 38 (1826). 

29 The Common Law, 228, n. 3, 181. See further generally, 230, 
and n. 4, 5. 

80 Alford v. Eglisfield, Dyer, 230 6, pi. 56. 

31 Holiday v. Hicks, Cro. Eliz. 638, 661, 746. See further, Malyne's 
Lex. Merc., Pt. I. Ch. 16; Molloy, Book 3, Ch. 8, i; Williams v. Mil- 
lington, i H. BI. 81, 82. 

82 Southern v. How, Cro, Jac. 468; s. c. Popham, 143. 

83 Hern v. Nichols, i Salk. 289. 



AGENCY 93 

Dispose")? 34 it is safe to assume that he considered the 
case to one of master and servant, and it always is 
cited as such. 35 

To conclude this part of the discussion, I repeat 
from my book on the Common Law 36 that as late 
as Blackstone agents appear under the general head 
of servants; that the precedents for the law of agency 
are cases of master and servant, when the converse is 
not the case ; and that Blackstone 's language on this 
point is express: "There is yet a fourth species of 
servants, if they may be so called, being rather in a 
superior, a ministerial, capacity; such as stewards, 
factors, and bailiffs; whom, however, the law consid- 
ers as servants pro tempore, with regard to such of 
their acts as affect their master's or employer's 
property." 37 

Possession is the third branch of the law in which 
the peculiar doctrines of agency are to be discovered, 
and to that I now pass. 

The Roman law held that the possession of a slave 
was the possession of his master, on the practical 
ground of the master's power. 38 At first it confined 
possession through others pretty dosely to things 
in custody of persons under the patria potestas of 
the possessor (including prisoners bona fide held as 
slaves). Later the right was extended by a constitu- 
tion of Severus. 39 The common law in like manner 

a* Mors v. Slew, 3 Keble, 72. 

35 Smith, Master and Servant, sd ed n 266. 

36 P. 228 et seq. S7 i Bl. Comm. 427. 

8 The Common Law, 228; Gams, 3, 164-166. 
Inst. 2, 9, 4, 5; C. 7- 32. i. 



9 4 COLLECTED LEGAL PAPERS 

allowed lords to appropriate lands and chattels pur- 
chased by their villeins, and after they had manifested 
their will to do so, the occupation of the villeins was 
taken to be the right of their lords. 40 As at Rome, the 
analogies of the familia were extended to free agents. 
Bracton allows possession through free agents, but 
the possession must be held in the name of the princi- 
pal; 41 and from that day to this it always has been the 
law that the custody of the servant is the possession 
of the master. 42 

The disappearance of the servant under the persona 
of his master, of which a trace was discovered in the 
law of torts, in this instance has remained complete. 
Servants have no possession of property in their 
custody as such, 43 The distinction in this regard 
between servants and all bailees whatsoever 44 is fun- 
damental, although it often has been lost sight of. 
Hence a servant can commit larceny 45 and cannot 
maintain trover. 46 A bailee cannot commit larceny 47 

^o Littleton, 177. Cf. Bract, fol. 191 a; Y. B. 22 Ass., pi. 37 fol. 
93; Litt., 172; Co. Lit. 117 . 

*i Bract., fol. 28 b, 42 b, 43, etc.; Fleta, IV., C. 3, i, C. 10, 7, 
C. n, i. 

42 Wheteley v. Stone, 2 Roll. Abr. 556, pi. 14; s. c. Hobart, 180; 
Drope v. Theyar, Popham, 178, 179. 

4 3 The Common Law, 227. 

4* The Common Law, 174, 211, 221, 243; Hallgarten v. Oldham, 135 
Mass, i, 9. 

45 Y. B. 13 Ed. TV. 9, 10, pi. $; 21 H. VII. 14, pi. 21. 

4 The Common Law, 227, n. 2. The distinction mentioned above, 
under torts, between servants in the house and on a journey, led to 
the servant's being allowed an appeal of robbery, without prejudice to 
the general principle. Heydon & Smith's Case, 13 Co. Rep. 67, 69,* Drope 
v. Theyar, Popham, 178, 179; Coombs v. Hundred of Bradley, 2 Salk. 
613, pi. a; ib., pi. x. 4T 2 Bish. Crim. Law, 833, 7& ed. 



AGENCY 95 

and can maintain trover. 48 In an indictment for 
larceny against a third person the property cannot 
be laid in a servant/ 9 it may be laid in a bailee. 50 
A servant cannot assert a lien; 51 a bailee, of course, 
may, even to the exclusion of the owner's right to the 
possessoiy actions. 52 

Here, then, is another case in which effects have 
survived their causes. But for survival and the fic- 
tion of identity It would be hard to explain why in this 
case alone the actual custody of one man should be 
deemed by the law to be the possession of another 
and not of himself. 

A word should be added to avoid a misapprehension 
of which there are signs in the books, and to which 
I have adverted elsewhere, 53 A man may be a ser- 
vant for some other purpose, and yet not a servant in 
Ms possession. Thus, an auctioneer or a factor is a 
servant for purposes of sale, but not for purposes 
of custody. His possession is not that of his princi- 
pal, but, on the contrary, is adverse to It, and held 
in his own name, as is shown by his lien. On the 
other hand, if the fiction of identity Is adhered to, 
there is nothing to hinder a man from constituting 
another his agent for the sole purpose of maintain- 
ing his possession, with the same effect as if the agent 
were a domestic servant, and In that case the princi- 
pal would have possession and the agent would not. 

48 The Common Law, 174, 243, 49 2 East, P. C. 652, 653. 

50 Kelyng, 39, 

si Bristow v. Whitmore, 4 De G. & J. 3 2 5 334- 

5 2 Lord t?. Price, L. R. 9 Ex. 54; Owen v. Knight, 4 Bing. N. C. $4 57- 

53 The Common Law, 233. 



96 COLLECTED LEGAL PAPERS 

Agency is comparatively unimportant in its bearing 
on possession, for reasons connected with procedure. 
With regard to chattels, because a present right of 
possession is held enough to maintain the possessory 
actions, and therefore a bailor, upon a bailment ter- 
minable at his will, has the same remedies as a master, 
although he is not one. With regard to real estate, 
because the royal remedies, the assizes, were con- 
fined to those who had a feudal seisin, and the 
party who had the seisin could recover as well when 
his lands were subject to a term of years as when 
they were in charge of agents or servants. 54 

Ratification is the only doctrine of which the his- 
tory remains to be examined. With regard to this I 
desire to express myself with great caution, as I shall 
not attempt to analyze exhaustively the Roman 
sources from which it was derived. I doubt, however, 
whether the Romans would have gone the length of 
the modern English law, which seems to have grown 
to its present extent on English soil. 

Ulpian said that a previous command to dispossess 
another would make the act mine, and, although 
opinion was divided on the subject, he thought that 
ratification would have the same effect. He agreed 
with the latitudinarian doctrine of the Sabinians, who 
compared ratification to a previous command. 55 The 
Sabinians' "comparison" of ratification to mandate 
may have been a mere figure of speech to explain 
the natural conclusion that if one accepts possession 

** Bract., foL 307 a. Cf. ib., 220. Header, Gewere, 126. 
w D. 43, 16, i, 12, 14. Cf. D. 46, 3i " 4 



AGENCY 97 

of a thing which has been acquired for him by wrong- 
ful force, he is answerable for the property in the 
same way as if he had taken it himself. It therefore 
is hardly worth while to inquire whether the glos- 
sators were right in their comment upon this passage, 
that the taking must have been in the name of the 
assumed principal, a condition which is ambigu- 
ously mentioned elsewhere in the Digest. 56 

Bracton copied Ulpian, 57 still, so far as I have ob- 
served, not going beyond cases of distress 5S and dis- 
seisin. 59 The first reported cases known to me are 
again assizes of novel disseisin. 60 

But later decisions went much beyond this point, 
as may be illustrated by one of them. 61 In trespass 
de bonis asportatis the defendant justified as bailiff. 
After charging the inquest Gascoigne said that "if 
the defendant took the chattels claiming property in 
himself for a heriot, although the lord afterward 
agreed to that taking for services due him, still he 
[the defendant] cannot be called his bailiff for that 
time. But had he taken them without command, 
for services due the lord, and had the lord afterwards 
agreed to his taking, he shall be adjudged as bailiff, 
although he was nowhere his bailiff before that tak- 

56 D. 43, 26, 13. (Pomponius). 5T Bract, fol. 171 b. 

ss Fol. 158 b, 159 0- 

59 Fol. 171. But note that by ratification "suam facit injuriam, et 
ita tenetur ad utrumque, ad restitutionem, s. [et] ad pcenam." Ibid., b* 

60 Y. B. 30 Ed. I. 128 (Horwood) (where, however, the modern doc- 
trine is stated and the Roman maxim is quoted by the judge) ; 38 Ass., 
pi. 9, fol. 223; s. c. 38 Ed. III. 18; 12 Ed. IV. 9, pL 23; Howden, 8 
ad fin, 27, 31. 

Y. B. 7 H. IV. 34, 35, pL i. 



9 8 COLLECTED LEGAL PAPERS 

ing." A ratification, according to this, may render 
lawful ab initio an act which without the necessary 
authority is a good cause of action, and for which the 
authority was wanting at the time that it was done. 
Such is still the law of England. 62 The same prin- 
ciple is applied in a less startling manner to contract, 
with the effect of giving rights under them to persons 
who had none at the moment when the contract 
purported to be complete. 63 In the case of a tort, it 
follows, of course, from what has been said, that if 
it is not justified by the ratification, the principal in 
whose name and for whose benefit it was done is 
answerable for it. 6 * 

Now it may be argued very plausibly that the 
modern decisions have only enlarged the comparison 

62 Godbolt, 109, no, pi. 129; s. c. 2 Leon, 196, pi. 246 (M. 28 & 29 
Eliz.) ; Hull v. Pickersgill, I Brod. & B. 282; Muskett v. Drummond, 10 
B. & C. 153, 157; Buron v. Denman, 2 Exch. 167 (1848) ; Secretary of 
State in Council of India v. Kamachee Boye Sahaba, 13 Moore, P. C. 22 
(1859), 86; Cheetham v. Mayor of Manchester, L. R. 10 C. P. 249; 
Wiggins v. United States, 3 Ct. of Cl. 412. But see Bro. Abr,, Trespass, 
pi. 86; Fitz, Abr., BayUie, pi. 4. 

63 Wolff v. Horncastle, i Bos. & P. 316 (1798). See further, Spittle 
v. Lavender, 2 Brod, & B. 452 (1821). 

* Bract 150 a, 171 b; Bro., Trespass, pi. 113; Bishop v. Montague, 
Cro. Eliz. 824; Gibson's Case, Lane', 90; Com. Dig., Trespass, c. i; 
Sanderson v. Baker, 2 Bl. 832; s. c. 3 Wils. 309; Barker v. Braham, 2 
BL 866, 868; s. c. 3 Wils. 368; Badkin v, Powell, Cowper, 476, 479 J 
Wilson v. Tumman, 6 Man. & Gr. 236, 242 ; Lewis v. Read, 13 M. & W. 
834; Buron v. Denman, 2 Exch. 167, 188; Bird v. Brown, 4 Exch. 786, 
799; Eastern Counties Ry. v. Broom, 6 Exch. 314, 326, 327; Roe v. 
Birkenhead, Lancashire, & Cheshire Junction Ry., 7 Exch. 36, 44; 
Ancona v. Marks, 7 H. & N. 686, 605; Perley v. Georgetown, 7 Gray, 
464; Condi* v. Baldwin, 21 N. Y. 219, 225; Exum v. Brister, 35 Miss. 
391 ; G. H. & S, A. Ry. v. Donahoe, 56 Tex. 162 ; Murray v. Lovejoy, 
a Cliff. 191, 195. (See 3 Wall, i, 9.) 



AGENCY 99 

of the Sabinians into a rule of law, and carried it to 
its logical consequences. The comparatur of Ulpian 
has become the aequiparatur of Lord Coke, 5 it might 
be said; ratification has been made equivalent to 
command, and that is all. But it will be seen that this 
is a very great step. It is a long way from holding 
a man liable as a wrongful disseizor when he has ac- 
cepted the wrongfully-obtained possession, to allow- 
ing him to make justifiable an act which was without 
justification when it was done, and, if that is material, 
which was followed by no possession on the part of 
the alleged principal. 66 For such a purpose why should 
ratification be equivalent to a previous command? 
Why should my saying that I adopt or approve of a 
trespass in any form of words make me responsible 
for a past act? The act was not mine, and I cannot 
make it so. Neither can it be undone or in any wise 
affected by what I may say. 67 

But if the act was done by one who affected to 
personate me, new considerations come in. If a man 
assumes the status of my servant pro hac vice, it lies 
between him and me whether he shall have it or not. 
And if that status is fixed upon him by my subsequent 
assent, it seems to bear with it the usual consequence 

65 Co. Lit. 207 a; 4 Inst. 317. It is comparatur in 30 Ed. I. 128; 
Bract. 171 6. 

68 Buron v. Denman, 2 Exch. 167 (1848). 

67 Ratification had a meaning, of course, when the usual remedy for 
wrongs was a blood-feud, and the head of the house had a choice 
whether he would maintain his man or leave him to the vengeance of 
the other party. See the story of Howard the Halt, i Saga Library, 
p. 50, Ch. 14, end. Compare "although he has not received him" in 
Fitz. Abr^ Corone, pi. 428, cited 4 Harv. Law Rev. 355. 



ioo COLLECTED LEGAL PAPERS 

as Incident that his acts within the scope of his em- 
ployment are my acts. Such juggling with words of 
course does not remove the substantive objections to 
the doctrine under consideration, but it does for- 
mally reconcile it with the general framework of 
legal ideas. 

From this point of view it becomes important to 
notice that, however it may have been in the Roman 
law, from the time of the glossators and of the canon 
law it always has been required that the act should 
have been done in the name or as agent of the per- 
son assuming to ratify it. "Ratum quis habere non 
potest quod ipsius nomine non est gestum*" 6S In the 
language of Baron Parke in Buron v. Denman, 69 "a 
subsequent ratification of an act done as agent is 
equal to a prior authority." And all the cases from 
that before Gascoigne downwards have asserted the 
same limitation. 70 I think we may well doubt 
whether ratification would ever have been held 
equivalent to command in the only cases in which 
that fiction is of the least importance had it not been 
for the further circumstance that the actor had 
assumed the position of a servant for the time being. 
The grounds for the doubt become stronger if it be 
true that the liability even for commanded acts 
started from the case of owner and slave. 

as Sext. Dec. 5. 12. de Reg. Jur. (Reg. o). It made the difference 
between excommunication and a mere sin in case of an assault upon 
one of the clergy. Ibid. $, n, 23. 

6* 2 Exch. 167. 

70 Supra. See also Fuller & TrimwelPs Case, 2 Leon, 215, 216; 
New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381, 
382; Bract., foL 28 b, ioo b. 



AGENCY 101 

In any event, ratification like the rest of the law 
of agency reposes on a fiction, and whether the same 
fiction or another, it will be interesting in the conclu- 
sion to study limits which have been set to its work- 
ings by practical experience. 

What more I have to say concerning the history 
of agency will appear in my treatment of the last 
proposition which I undertook to maintain. I said that 
finally I should endeavor to show that the whole out- 
line of the law, as it stands to-day, is the resultant 
of a conflict between logic and good sense the one 
striving to carry fictions out to consistent results, the 
other restraining and at last overcoming that effort 
when the results become too manifestly unjust. To 
that task I now address myself. 

I assume that common-sense is opposed to making 
one man pay for another man's wrong, unless he 
actually has brought the wrong to pass according to 
the ordinary canons of legal responsibility, unless, 
that is to say, he has induced the immediate wrong- 
doer to do acts of which the wrong, or, at least, wrong, 
was the natural consequence under the circumstances 
known to the defendant. I assume that common- 
sense is opposed to allowing a stranger to my overt 
acts and to my intentions, a man of whom I have 
never heard, to set up a contract against me which I 
had supposed I was making with my personal friend. 
I assume that common-sense is opposed to the denial 
of possession to a servant and the assertion of it 
for a depositary, when the only difference between 
the two lies in the name by which the custodian is 



102 COLLECTED LEGAL PAPERS 

called* And I assume that the opposition of com- 
mon-sense is intensified when the foregoing doctrines 
are complicated by the additional absurdities intro- 
duced by ratification. I therefore assume that com- 
mon sense is opposed to the fundamental theory of 
agency, although I have no doubt that the possible 
explanations of its various rules which I suggested 
at the beginning of this chapter, together with the 
fact that the most flagrant of them now-a-days often 
presents itself as a seemingly wholesome check on the 
indifference and negligence of great corporations, 
have done much to reconcile men's minds to that 
theory. What remains to be said I believe will 
justify my assumption. 

I begin with the constitution of the relation of 
master and servant, and with the distinction that an 
employer is not liable for the torts of an independent 
contractor, or, in other words, that an independent 
contractor is not a servant. And here I hardly know 
whether to say that common-sense and tradition are 
in conflict, or that they are for once harmonious. On 
the one side it may be urged that when you have ad- 
mitted that an agency may exist outside the family 
relations, the question arises where you are to stop, 
and why, if a man who is working for another in one 
case is called his servant, he should not be called so 
in all. And it might be said that the only limit is 
found, not in theory, but in common-sense, which 
steps in and declares that if the employment is well 
recognized as very distinct, and all the circumstances 
are such as to show that it would be mere folly to 



AGENCY 103 

pretend that the employer could exercise control in 
any practical sense, then the fiction is at an end. 
An evidence of the want of any more profound or 
logical reason might be sought in the different cir- 
cumstances that have been laid hold of as tests, the 
objections that might be found to each, and in the 
fact that doubtful cases are now left to the jury. 71 

On the other hand, it might be said that the master 
is made answerable for the consequences of the 
negligent acts "of those whom the law denominates 
his servants, because/ 3 in the language of that judg- 

71 Among the facts upon which stress has been laid are the follow- 
ing: i. Choice. Kelly v. Mayor of New York, n N. Y. 432, 436. See 
Walcott v, Swampscott, i Allen, 101, 103. But although It is true 
that the employer has not generally the choice of the contractor's ser- 
vants, he has the choice of the contractor, yet he is no more liable for 
the contractor's negligence than for that of his servant. 2. Control. 
Sadler v. Henlock, 4 EL BL 570, 573 (1855). Yet there was control 
in the leading case of Quarman v. Burnett, 6 M. & W. 499 (1840), 
where the employee was held not to be the defendant's servant. Cf. 
Steel v. Lester, 3 C P. D. 121 (1877). 3. A round sum paid. But this 
was true in Sadler v. Henlock, sup., where the employee was held to be 
a servant. 4. Power to discharge. Burke v. Norwich & W. R.R., 34 
Conn. 474 (1867). See Lane t>. Cotton, 12 Mod. 472, 4&8, 489. But 
apart from the fact that this can only be important as to persons re- 
moved two stages from the alleged master, and not to determine whether 
a person directly employed by him is a servant or contractor, the power 
to discharge a contractor's servants may be given to the contractee with- 
out making him their master. Reedie v. London & Northwestern Ry. 
Co., 4 Exch. 244, 258. Robinson t;. Webb, n Bush (Ky.) 4^4-5- 
Notoriously distinct calling. Milligan v. Wedge, 12 Ad. &E. 737 (1840) J 
Linton v. Smith, 8 Gray (Mass.), 47- This is a practical distinction, 
based on common-sense, not directly on a logical working out of the 
theory of agency. Moreover, it is only a partial test It does not 
apply to all the cases, 

In doubtful cases the matter seems to be left to the jury, that ever- 
ready sword for the cutting of Gordian knots, as difficult questions of 
Jaw generally are. 



104 COLLECTED LEGAL PAPERS 

ment wHch settled the distinction tinder considera- 
tion/ 2 "such servants represent the master himself, 
and their acts stand upon the same footing as his 
own." That although the limits of this identifica- 
tion are necessarily more or less vague, yet all the pro- 
posed tests go to show that the distinction rests on 
the remoteness of personal connection between the 
parties, and that as the connection grows slighter, the 
likeness to the original case of menials grows less. 
That a contractor acts in his own name and on his 
own behalf, and that although the precise point at 
which the line is drawn may be somewhat arbitrary, 
the same is true of all legal distinctions, and that they 
are none the worse for it, and that wherever the line 
is drawn it is a necessary one, and required by the 
very definition of agency. I suppose this is the pre- 
vailing opinion. 

I come next to the limit of liability when the re- 
lation of master and servant is admitted to exist. 
The theory of agency as applied to free servants no 
doubt requires that if the servant commits a wilful 
trespass or any other wrong, when employed about 
his own business, the master should not be liable. No 
free man is servant all the time. But the cases which 
exonerate the master could never have been decided 
as the result of that theory alone. They rather repre- 
sent the revolt of common-sense from the whole 
doctrine when its application is pushed far enough 
to become noticeable. 

72 Littledale, J., in Laugher v. Pointer, $ B. & C. 547, 553 (T. 1 G. IV, 
1826). 



AGENCY 105 

For example, It has been held that it was beyond 
the scope of a servant's employment to go to the fur- 
ther side of a boundary ditch, upon a neighbor's land, 
and to cut bushes there for the purpose of clearing 
out the ditch, although the right management of 
the master's farm required that the ditch should 
be cleaned, and although the servant only did what 
he thought necessary to that end, and although the 
master relied wholly upon his servant's judgment in 
the entire management of the premises. 73 

Mr. Justice Keating said, the powers given to the 
servant "were no doubt very wide, but I do not see 
how they could authorize a wrongful act on another 
person's land or render his employers liable for a 
wilful act of trespass." It is true that the act could 
not be authorized in the sense of being made lawful, 
but the same is true of every wrongful act for which 
the principal is held. As to the act being wilful, there 
was no evidence that it was so in any other sense than 
that which every trespass might be said to be, and 
as the judge below directed a verdict for the defen- 
dant, there were no presumptions adverse to the 
plaintiff in the case. Moreover, it has been said else- 
where that even a wilful act in furtherance of the 
master's business might charge him. 74 

Mr. Justice Grove attempted to draw the line in 
another way. * He said, "There are some things which 

Bolingbroke v. Swindon Local Board, L. R. g C. P. $75 (1874) . Cf. 
Lewis t>. Read, 13 M. & W. 834; Haseler v. Lemoyne, 5 C. B. ar. s. 530. 

7 *Howe v. Newmarch, 12 Allen, 49 (1866). See also cases as to 
fraud, infv and cf. Craker v. Chicago & N. W. Ry. Co., 3$ Wise. 657, 
669 



io6 COLLECTED LEGAL PAPERS 

may be so naturally expected to occur from the 
wrongful or negligent conduct of persons engaged in 
carrying out an authority given, that they may be 
fairly said to be within the scope of the employment." 
But the theory of agency would require the same 
liability for both those things which might and those 
which might not be so naturally expected, and this 
is only revolt from the theory. Moreover, it may 
be doubted whether a case could be found where the 
servant's conduct was more naturally to be expected 
for the purpose of accomplishing what he had to do. 75 

The truth is, as pretty clearly appears from the 
opinions of the judges, that they felt the difficulty 
of giving a rational explanation of the doctrine sought 
to be applied, and were not inclined to extend it. 
The line between right and wrong corresponded with 
the neighbor's boundary line, and therefore was more 
easily distinguishable than where it depends on the 
difference between care and negligence, and it was 
just so much easier to hold that the scope of the 
servant's employment was limited to lawful acts. 

I now pass to fraud. It first must be understood 
that, whatever the law may be, it is the same in the 
case of agents, stricto sensu, as of other servants. 
As has been mentioned, the fraudulent servant was a 
factor in the first reported decision that the master 
was liable. 76 Now if the defrauded party not merely 
has a right to repudiate a contract fraudulently ob- 
tained, or in general to charge a defendant to the 

76 Cf. Harlow v. Humiston, 6 Cowen, 189 (1826) , 
* a Hern t>. Nichols, i Salk. 289, 



AGENCY 107 

extent that he has derived a benefit from another's 
fraud, but may hold him answerable in solidum for 
the damage caused by the fraudulent acts of his 
servant in the course of the latter's employment, the 
ground can only be the fiction that the act of the 
servant is the act of the master. 

It is true that in the House of Lords 7T Lord Sel- 
borne said that the English cases "proceeded, not on 
the ground of any imputation of vicarious fraud to 
the principal, but because (as it was well put by 
Mr. Justice Willes in Barwick's case 78 ) "with respect 
to the question whether a principal is answerable 
for the act of his agent in the course of his master's 
business, no sensible distinction can be drawn be- 
tween the case of fraud and the case of any other 
wrong." But this only puts off the evil day. Why 
is the principal answerable in the case of any other 
wrong? It is, as has been seen, because, in the 
language of Mr. Justice Littledale, the "servants 
represent the master himself, and their acts stand 
upon the same footing as his own." 7 * Indeed Mr. 
Justice Willes, in the very judgment cited by Lord 
Selborne, refers to Mr. Justice Littledale's judgment 
for the general principle. So Lord Denman, in Fuller 
v. Wilson, 80 "We think the principal and his agent 

77 Houldsworth v. City of Glasgow Bank, 5 App. Cas. 3i73 26 j3 2 7 
(1880). 

78 L. R. 2 Ex. 259. 

79 Laugher v. Pointer, 5 B. & C. 547, 553- See Williams v. Jones, 3 
H. & C 602, 609. 

80 3 Q. B. 58, 67 j s. c. reversed on another ground, but admitting 
this principle, ib. 77 and 1009, 1010 (1842). 



zo8 COLLECTED LEGAL PAPERS 

are for this purpose identified." I repeat more dis- 
tinctly the admission that no fiction is necessary to 
account for the rule that one who is induced to con- 
tract by an agent's fraud may rescind as against the 
innocent principal For whether the fraud be im- 
puted to the principal or not, he has only a right 
to such a contract as has been made, and that con- 
tract is a voidable one. But when you go beyond 
that limit and even outside the domain of contract 
altogether to make a man answer for any damages 
caused by his agent's fraud, the law becomes almost 
inconceivable without the aid of the fiction. But a 
fiction is not a satisfactory reason for changing men's 
rights or liabilities, and common-sense has more or 
less revolted at this point again and has denied the 
liability. The English cases are collected in Houlds- 
worth v. City of Glasgow Bank. 81 

When it was attempted to carry identification one 
step further still, and to unite the knowledge of the 
principal with the statement of the agent in order 
to make the latter's act fraudulent, as in Cornfoot 
v. Fowke, 82 the absurdity became more manifest and 
dissent more outspoken. As was most accurately said 
by Baron Wilde in a later case. 83 "The artificial iden- 
tification of the agent and principal, by bringing the 
words of the one side with the knowledge of the 
other, induced the apparent logical consequence of 

81 5 App. Cas. 317. See The Common Law, p. 231. 

82 6 M. & W. 358 (1810). It is not necessary to consider whether 
the case was rightly decided or not, as I am only concerned with this 
particular ground, 

** Udell v. Atherton, 7 H. & N. 172, 184 (1861), 



AGENCY 109 

fraud. On the other hand, the real Innocence of 
both agent and principal repelled the notion of a 
constructive fraud in either. A discordance of views ? 
varying with the point from which the subject was 
looked at, was to be expected. 77 The language of 
Lord Denman, just quoted, from Fuller v. Wilson^ 
was used with reference to this subject. 

The restrictions which common-sense has imposed 
on the doctrine of undisclosed principal are well- 
known. An undisclosed principal may sue on Ms 
agent's contract, but his recovery is subject to the 
state of accounts between the agent and third per- 
son. 84 He may be sued, but it is held that the 
recovery will be subject to the state of accounts be- 
tween principal and agent. If the principal has paid 
fairly before the agency was discovered; but it is, 
perhaps, doubtful whether this rule or the qualifica- 
tion of it is as wise as the former one. 85 

Then as to ratification. It has nothing to do with 
estoppel, 86 but the desire to reduce the law to general 
principles has led some courts to cut it down to that 
point. 87 Again, the right to ratify has been limited 
by considerations of justice to the other party. It 
has been said that the ratification must take place 

8 * Rabone v. Williams, 7 T. R. 360 (1785) ; George t>. Clagett, 7 
T. R. 359 (1797) ; Carr t>. Hinchcliff, 4 B. & C. 547 (1825) ; Borries v. 
Imperial Ottoman Bank, L. R. 9 C. P. 38 (1873) ; Semenza v. Brinsley, 
18 C. B. N. s. 467, 477 (i86$> ; Ex parte Dixon, 4 Ch. B 133, 

85 Armstrong v. Stokes, L. R. 7 Q. B. 598, 610; Irvine v. Watson, 
5 Q. B. D. 414. 

86 See Metcalf v. Williams, 144 Mass. 452, 454, and cases cited. 

87 Doughaday v. Crowell, 3 Stockt. (N.J.) 201; Bird v. Brown, 4 
Exch. 788, 799. 



no COLLECTED LEGAL PAPERS 

at a time and under circumstances when the would-be 
principal could have done the act; 88 and it has 
been so held in some cases when it was manifestly 
just that the other party should know whether the 
act was to be considered the principal's or not, as in 
the case of an unauthorized notice to quit, which the 
landlord attempts to ratify after the time of the 
notice has begun to run. 89 But it is held that bring- 
ing an action may be subsequently ratified. 90 

I now take up pleading. It is settled that an 
assumpsit Ql to or by a servant for his master may 
be laid as an assumpsit to or by the master. But 
these are cases where the master has commanded the 
act, and, therefore, as I have shown in the beginning 
of this discussion, may be laid on one side. The same 
thing is true of a trespass commanded by the 
master. 92 But when we come to conduct which the 
master has not commanded, but for which he is re- 
sponsible, the difficulty becomes greater. It is, never- 
theless, settled that in actions on the case the negli- 
gence of the servant is properly laid as the negligence 
of the master, 93 and if the analogy of the substantive 
law is to be followed, and the fiction of identity is 
to be carried out to its logical results, the same would 
be true of all pleading. It is so held with regard to 
fraud, "The same rule of law which imputes to the 

88 Bird v. Brown, 4 Exch. 788. 
s 9 Doe v. Goldwin, 2 Q. B. 143. 

90 Ancona v. Marks, 7 H. & N. 686. 

91 Seignior and Wolmer's Case, Godboldt, 360, 

92 Gregory v. Piper, 9 B. & C. 591. 

9 3 Brucker v. Fremont, 6 T. R. 659 (1796). 



AGENCY in 

principal the fraud of the agent and makes him 
answerable for the consequences justifies the allega- 
tion that the principal himself committed the 
wrong. 7594 Some American cases have applied the 
same view to trespass/ 5 and have held that this action 
could be maintained against a master whose servant 
had committed a trespass for which he was liable al- 
though he had not commanded it. But these de- 
cisions, although perfectly reasonable, seem to have 
been due rather to inadvertence than to logic, in the 
first instance, and the current of authority is the other 
way. Baron Parke says, "The maxim 'Qui facit per 
alium, facit per se' renders the master liable for all 
the negligent acts of the servant in the course of his 
employment, but that liability does not make the 
direct act of the servant the direct act of the master. 
Trespass will not lie against him; case will, In effect, 
for employing a careless servant." * Considered as 
reasoning, it would be hard to unite more errors in 
as many words. "Qui facit per alium, facit per se" 
as an axiom admitted by common-sense goes no 
farther than to make a man liable for commanded 
trespasses, and for them trespass lies. It it be ex- 
tended beyond that point it simply embodies the 
fiction, and the precise point of the fiction is that the 
direct act of one is treated as if It were the direct act 

94 Comstock, Ch. J., in Bennett v. Judson, 21 N. Y. 238 (i860) ; ace. 
Barwick v. English Joint Stock Bank, L R. 2 Ex, 259 (1867). 

95 Andrew v. Howard, 36 Vt. 248 (1863); May v. Bliss, 22 Vt. 477 
(1850). 

** Sharrod v. London & N, W. Ry Co., 4 Exch. 580, $$$ (1849). 
Cf. Morley v. Gaisford, 2 H. BL 442 (*795K 



H2 COLLECTED LEGAL PAPERS 

of another. To avoid this conclusion a false reason 
is given for the liability in general. 97 It is, as has 
been shown, the fallacy of the Roman jurists, and is 
disposed of by the decisions that no amount of care 
in the choice of one's servant will help the master in 
a suit against him/ 8 But although the reasoning is 
bad, the language expresses the natural unwilling- 
ness of sensible men to sanction an allegation that 
the defendant directly brought force to bear on the 
plaintiff, as the proper and formal allegation, when 
as a matter of fact it was another person who did it 
by his independent act, and the defendant is only 
answerable because of a previous contract between 
himself and the actual wrong-doer," Another cir- 
cumstance may have helped. Usually the master is 
not liable for his servant's wilful trespasses, and, 
therefore, the actions against him stand on the ser- 
vant's negligence as the alternative ground on which 
anybody is responsible. There was for a time a con- 
fused idea that when*the cause of action was the de- 
fendant's negligence, the proper form of action was 
always case. 100 Of course if this was true it applied 
equally to the imputed negligence of a servant. And 
thus there was the further possibility of confounding 
the question of the proper form of action with the 

97 The same reason is given in M'Manus v. Crickett, i East, 106, 108 
(1800). Compare i Harg. Law Tracts, 347; Walcott v. Swampscott, 
i Allen, 101, 103 ; Lane v. Cotton, 12 Mod. 472, 488, 489. 
* Dansey v. Richardson, 3 EL & BI. 144, 161. 

99 M'Mamis v. Crickett, i East, 106, no (1800) ; Brucker v. Fromont, 
6T. R. 659 (170). 

100 Ogle v. Barnes, 8 T. R, 188 (1799). Cf. Leame t>. Bray, 3 East, 
593 (1803). 



AGENCY 113 

perfectly distinct one whether the defendant was 
liable at all. 

I come finally to the question of damages. In those 
States where exemplary damages are allowed, the 
attempt naturally has been made to recover such 
damages from masters when their servant's conduct 
has been such as to bring the doctrine into play. 
Some courts have had the courage to be consistent. 101 
"What is the principle," it is asked, "upon which 
this rule of damages is founded? It is that the act of 
the agent is the act of the principal himself. . . . 
The law has established, to this extent, their legal 
unity and identity. . . . This legal unity of the prin- 
cipal and agent, in respect to the wrongful or tortious, 
as well as the rightful acts, of the agent, done in the 
course of his employment, is an incident which the 
law has wisely attached to the relation, from its 
earliest history." "If then the act of the agent be 
the act of the principal in law, and this legal identity 
is the foundation of the responsibility of the prin- 
cipal, there can be no escape from his indemnity to 
the full extent of civil responsiblity." An instruction 
that the jury might give punitive damages was up- 
held, and the plaintiff had judgment for $12,000. 
Whatever may be said of the practical consequences 
or the English of the opinion from which these ex- 
tracts are made, it has the merit of going to the root 
of the matter with great keenness. On the other 

101 New Orleans, Jackson, & Great Northern R, R. Co. v. Bailey, 
40 Miss. 395, 452, 453, 456 (1866) ; aca Atlantic & G. W. Ry. Co. v. 
Dunn, 19 Ohio St. 162, 



ii 4 COLLECTED LEGAL PAPERS 

hand, other courts, more impressed by the monstrosity 
of the result than by the elegantia juris, have per- 
emptorily declared that it was absurd to punish a man 
who had not been to blame, and have laid down the 
opposite rule without hesitation. 102 

I think I now have made good the propositions 
which I undertook at the beginning of this essay to 
establish. I fully admit that the evidence here col- 
lected has been gathered from nooks and corners, 
and that although in the mass it appears to me im- 
posing, it does not lie conspicuous upon the face of 
the law. And this is equivalent to admitting, as I 
do, that the views here maintained are not favorites 
with the courts. How can they be? A judge would 
blush to say nakedly to a defendant: "I can state no 
rational ground on which you should be held liable, 
but there is a fiction of law which I must respect and 
by which I am bound to say that you did the act com- 
plained of, although we both know perfectly well that 
it was done by somebody else whom the plaintiff could 
have sued if he had chosen, who was selected with 
the utmost care by you, who was in fact an eminently 
proper person for the employment in which he was 
engaged, and whom it was not only your right to 
employ, but much to the public advantage that you 
should employ." That would not be a satisfactory 
form in which to render a decision against a master, 
and it is not pleasant even to admit to one's self that 

102 Hagar v. Providence & Worcester R.R., 3 R. I. 88 (1854) ; Cleghorn 
v. New York Central & Hudson River R.R., 56 N. Y. 44 (1874). Cf. 
Craker v. Chicago & N. W. R.R., 36 Wis. 657 (1875). 



AGENCY 115 

such are the true grounds upon which one is deciding. 
Naturally, therefore, judges have striven to find more 
intelligible reasons, and have done so in the utmost 
good faith; for whenever a rule of law is in fact a 
survival of ancient traditions, its ancient meaning is 
gradually forgotten, and it has to be reconciled to 
present notions of policy and justice, or to disappear. 

If the law of the agency can be resolved into mere 
applications of general and accepted principles, then 
my argument fails; but I think it cannot be, and I 
may suggest, as another ground for my opinion beside 
those which I have stated heretofore, that the variety 
of reasons which have been offered for the most im- 
portant application of the fiction of identity, the 
liability of the master for his servant's torts, goes far 
to show that none of those reasons are good. Baron 
Parke, as we have seen, says that case is brought in 
effect for employing a negligent servant. Others 
have suggested that it was because it was desirable 
that there should be some responsible man who could 
pay the damages. 103 Mr. Justice Grove thinks that 
the master takes the risk of such offences as it must 
needs be should come. 

I admit my scepticism as to the value of any such 
general considerations, while on the other hand I 
should be perfectly ready to believe, upon evidence, 
that the law could be justified as it stands when ap- 
plied to special cases upon special grounds, 104 

103 See Williams t>. Jones, 3 H. & C. 256, 263 ; i Harg. Law Tracts, 347. 

104 Cf, what is said as to common carriers in Hie Common Law, 204, 
205. 



ii6 COLLECTED LEGAL PAPERS 

There should have been added to the illustrations of a man's responsi- 
bility within his house, given in the former article, that of a vassal 
for attempts on the chastity of his lord's daughter or sister "tant 
com elle est Damoiselle en son Hostel," in Ass. Jerusalem, c. 205, 217, 
ed. 1690. The origin of the liability of innkeepers never has been studied, 
so far as I know Beaumanoir, c. 36, seems to confine the liability to 
things intrusted to the innkeeper, and to limit it somewhat even in that 
case, and to suggest grounds of policy. The English law was more 
severe, and put it on the ground that the guest for the time had come 
to be under the innkeeper's protection and safety. 42 Ass., pi. 17, fol. 
260. A capias was refused on the ground that the defendant was not in 
fault, but an elegit was granted. 42 Ed. III. n, pi. 13. Notwithstand- 
ing the foregoing reason given for it, the liability was confined, at an 
early date, to those exercising a common calling (common hostler). 
ii Hen. IV. 45, pi. 18. See The Common Law, 183-189, 203. See 
further, 22 Hen. VI. 21, pi. 38; pi. 8. And note a limitation of 
liability in cases of taking by the king's enemies, similar to that of 
bailees. Plowden, 9, and note in margin; The Common Law, 177, 
182, 199, 201. The references to the custom of England, or to the 
lex terrce, are of no significance. The Common Law, 188. See further, 
the titles of Glanvill and Bracton. Other citations could be given if 
necessary. 



PRIVILEGE, MALICE, AND INTENT* 

THE law of torts as now administered has worked 
Itself Into substantial agreement with a genera! 
theory. I should sum up the first part of the theory 
in a few words, as follows: Actions of tort are 
brought for temporal damage. The law recognizes 
temporal damage as an evil which its object is to 
prevent or to redress, so far as is consistent with 
paramount considerations to be mentioned. When 
it is shown that the defendant's act has had temporal 
damage to the plaintiff for its consequence, the next 
question is whether that consequence was one which 
the defendant might have foreseen. If common ex- 
perience has shown that some such consequence was 
likely to follow the act tinder the circumstances 
known to the actor, he is taken to have acted with 
notice, and is held liable, unless he escapes upon 
the special grounds to which I have referred, and 
which I shall mention in a moment. The standard 
applied is external, and the words malice, intent, 
and negligence, as used in this connection, refer to 
an external standard. If the manifest probability 
of harm is very great, and the harm follows, we say 
that it is done maliciously or intentionally; if not so 
great, but still considerable, we say that the harm is 

* Harvard Law Review, Vol. VIII, x. (1894-) 
117 



u8 COLLECTED LEGAL PAPERS 

done negligently; If there is no apparent danger, we 
call it mischance, 

Furthermore, so far as liability for an act depends 
upon its probable consequences without more, the 
liability usually is not affected by the degree of the 
probability if it is sufficient to give the defendant 
reasonable warning. In other words, for this pur- 
pose commonly it does not matter whether the act is 
called malicious or negligent. To make a prima 
facie case of trespass or libel, if the likelihood of 
bringing force to bear on the plaintffs person or of 
bringing him into contempt goes to the height ex- 
pressed by the word negligence, as above explained, 
it need not go higher. There are exceptions, at 
least in the criminal law. The degree of danger 
under the known circumstances may make the differ- 
ence between murder and manslaughter. 1 But the 
rule is as I have stated. The foregoing general prin- 
ciples I assume not to need further argument. 2 

But the simple test of the degree of manifest 
danger does not exhaust the theory of torts. In 
some cases, a man is not liable for a very manifest 
danger unless he actually intends to do the harm 
complained of. In some cases, he even may intend 
to do the harm and yet not have to answer for it: and, 
as I think, in some cases of this latter sort, at least, 
actual malice may make him liable when without it 
he would not have been. In this connection I mean 

1 2 Bigelow, Fraud, 117, n. 3 ; Commonwealth v. Pierce, 138 Mass., 
16$. Compare Hanson v. Globe Newspaper Co., i$g Mass., 293. 

2 See The Common Law, Ch. 2, 3, 4. 



PRIVILEGE, MALICE, AND INTENT 119 

by malice a malevolent motive for action, without 
reference to any hope of a remoter benefit to oneself 
to be accomplished by the intended harm to another. 3 
The question whether malice in this sense has any 
effect upon the extent of a defendant's rights and 
liabilities, has arisen in many forms. It is familiar 
in regard to the use of land in some way manifestly 
harmful to a neighbor. It has been suggested, and 
brought to greater prominence, by boycotts, and 
other combinations for more or less similar purposes, 
although in such cases the harm inflicted is only a 
means, and the end sought to be attained generally 
is some benefit to the defendant. But before dis- 
cussing that, I must consider the grounds on which 
a man escapes liability in the cases referred to, even 
if his act is not malicious. 

It will be noticed that I assume that we have got 
past the question which is answered by the test of 
the external standard. There is no dispute that the 
manifest tendency of the defendant's act is to inflict 
temporal damage upon the plaintiff. Generally, that 
result is expected, and often at least it is intended. 
And the first question that presents itself is why the 
defendant is not liable without going further. The 
answer is suggested by the commonplace, that the 
intentional infliction of temporal damage, or the 
doing of an act manifestly likely to inflict such 
damage and inflicting it, is actionable if done without 
just cause. 4 When the defendant escapes, the court 

3 See Rideout v. Knox, 148 Mass., 368, 373. 

* Walker v. Cronin, 107 Mass., 555, 562 ; Mogul Steamship Co. v. 
McGregor, 23 QJBJX 598, 613, 618. 



iso COLLECTED LEGAL PAPERS 

is of opinion that he has acted with just cause. 
There are various justifications. In these instances, 
the justification is that the defendant is privileged 
knowingly to inflict the damage complained of. 

But whether, and how far, a privilege shall be 
allowed is a question of policy. Questions of policy 
are legislative questions, and judges are shy of 
reasoning from such grounds. Therefore, decisions 
for or against the privilege, which really can stand 
only upon such grounds, often are presented as hol- 
low deductions from empty general propositions like 
sic utere tuo ut alienum non laedas, which teaches 
nothing but a benevolent yearning, or else are put 
as if they themselves embodied a postulate of the 
law and admitted of no further deduction, as when it 
is said that, although there is temporal damage, there 
is no wrong; whereas, the very thing to be found out 
is whether there is a wrong or not, and if not, why 
not. 

When the question of policy is faced it will be 
seen to be one which cannot be answered by general- 
ities, but must be determined by the particular 
character of the case, even if everybody agrees what 
the answer should be, I do not try to mention or 
to generalize all the facts which have to be taken 
into account; but plainly the worth of the result, or 
the gain from allowing the act to be done, has to be 
compared with the loss which it inflicts. Therefore, 
the conclusion will vary, and will depend on different 
reasons according to the nature of the affair. 

For instance, a man has a right to set up a shop 



PRIVILEGE, MALICE, AND INTENT 121 

in a small village which can support but one of the 
kind, although he expects and intends to ruin a 
deserving widow who is established there already. 
He has a right to build a house upon his land in such 
a position as to spoil the view from a far more valu- 
able house hard by. He has a right to give honest 
answers to inquiries about a servant, although he 
intends thereby to prevent his getting a place. But 
the reasons for these several privileges are different. 
The first rests on the economic postulate that free 
competition is worth more to society than it costs. 
The next, upon the fact that a line must be drawn 
between the conflicting interests of adjoining owners, 
which necessarily will restrict the freedom of each; 5 
upon the unavoidable philistinism which prefers use 
to beauty when considering the most profitable way 
of administering the land in the jurisdiction taken 
as one whole; upon the fact that the defendant does 
not go outside his own boundary; and upon other 
reasons to be mentioned in a moment. The third, 
upon the proposition that the benefit of free access 
to information, in some cases and within some limits, 
outweighs the harm to an occasional unfortunate. I 
do not know whether the principle has been applied 
in favor of a servant giving a character to a master. 

Not only the existence but the extent or degree of 
the privilege will vary with the case. Some privi- 
leges are spoken of as if they were absolute, to bor- 
row the language familiar in cases of slander. For 

5 See Middlesex Company v. McCtae, 149 Mass. 103, 104; Boston 
Ferrule Company v. Hills, 159 Mass. 147, 149, 150. 



122 COLLECTED LEGAL PAPERS 

instance, in any common case, apart from statutory 
exceptions, the right to make changes upon or in a 
man's land is not affected by the motive with which 
the changes are made. Were it otherwise, and were 
the doctrine carried out to its logical conclusion, 
an expensive warehouse might be pulled down on 
the finding of a jury that it was maintained mali- 
ciously, and thus a large amount of labor might be 
wasted and lost. Even if the law stopped short of 
such an extreme, still, as the motives with which the 
building was maintained might change, the question 
would be left always in the air. There may be other 
and better reasons than these and those mentioned 
before, or the reasons may be insufficient. 6 I am 
not trying to justify particular doctrines, but to ana- 
lyze the general method by which the law reaches 
its decision. 

So it has been thought that refusing to keep a man 
in one's service, if he hired a house of the plaintiff, 
or dealt with him, was absolutely privileged/ Here 
the balance is struck between the benefit of un- 
fettered freedom to abstain from making the con- 
tract, on the one side, and the harm which, may be 
done by the particular use of that freedom, on the 
other. 

It is important to notice that the privilege is not 
a general one, maliciously to prevent making con- 

See i Ames & Smith, Cases on Torts, 750, n. 

7 Heywood v. Tillson, 75 Me. 225; Payne v. Western & Atlantic 
R. R., 13 Lea, 507. See Capital and Counties Bank v. Henry, 7 App. 
Cas. 741- 



PRIVILEGE, MALICE, AND INTENT 123 

tracts with the plaintiff, but is attached to the par- 
ticular means employed. It is a privilege to abstain 
from making a certain kind of contract oneself, 
whether maliciously, in order to prevent others from 
contracting with the plaintiff, or for a more harm- 
less motive. Still more important it is, and more 
to the point of this paper, that, in spite of many gen- 
eral expressions to the contrary, the conclusion does 
not stand on the abstract proposition that malice 
cannot make a man liable for an act otherwise law- 
ful. It is said that if this were not so a man would 
be sued for his motives. But the proposition is no 
more self-evident than that knowledge of the cir- 
cumstances under which an act is done cannot affect 
liability, since otherwise a man would be sued for 
his knowledge, a proposition which is obviously un- 
true. In a proper sense, the state of a man's con- 
sciousness always is material to his liability, and 
when we are considering the extent of a man's privi- 
lege knowingly to inflict pecuniary loss upon his 
neighbor, it would not be surprising to find that in 
some cases motives made all the difference in the 
world. I pass to the inquiry, whether privilege, 
sometimes at least, is not dependent upon the motives 
with which the act complained of is done. 

Take a case where, as in the last one, the harm 
complained of is a malicious interference with busi- 
ness, but where the means employed (the act of the 
defendant) are different. I assume that the harm 
is recognized by the law as a temporal damage, that 
not being the object of this discussion. I assume 



124 COLLECTED LEGAL PAPERS 

also that the defendant's act is not unlawful or a 
cause of action unless it is made so by reason of 
the particular consequence mentioned, and the de- 
fendant's attitude toward that consequence. I as- 
sume 5 finally, that the acts or abstinences of third 
persons induced by the defendant are lawful If a 
case could be put where the defendant's act was 
justified by no grounds of policy more special or other 
than the general one of letting men do what they 
want to do, it would present the point which I wish 
to raise. Such a case I find hard to imagine, but if 
one should occur, I think courts would say that the 
benefit of spontaneity was outweighed by the damage 
which it caused. 8 The gratification of ill-will, being 
a pleasure, may be called a gain, but the pain on 
the other side is a loss more important. Otherwise^ 
why allow a recovery for a battery? There is no 
general policy in favor of allowing a man to do harm 
to his neighbor for the sole pleasure of doing harm. 

But there is no need to stay in such thin air. 
Let us suppose another case of interference with busi- 
ness by an act which has some special grounds of 
policy in its favor. Take the case of advice not to 
employ a certain doctor, given by one in a position of 
authority. To some extent it is desirable that people 
should be free to give one another advice. On the 

8 Possibly, one is suggested by Keeble v. Hickeringill, n East, $74 n., 
and Tarleton v. M'Gawley, Peake, 205 we may suppose people to 
be kept away from the plaintiff by the malicious firing of guns, other- 
wise lawful. These cases will be found in i Ames & Smith, Cases of 
Torts, which contains an excellent selection of decisions bearing on the 
subject of this article. 



PRIVILEGE, MALICE, AND INTENT 125 

other hand, commonly it is not desirable that a man 
should lose his business. The two advantages run 
against one another, and a line has to be drawn. 
So absolute a right of way may not be given to 
advice as to abstaining from some contracts which 
have been mentioned. In such a case, probably it 
would be said that if the advice was believed to be 
good, and was given for the sake of benefiting the 
hearers, the defendant would not be answerable. 
But if it was not believed to be for their benefit, and 
was given for the sake of hurting the doctor, the 
doctor would prevail. 9 If the advice was believed 
to be good, but was volunteered for the sake of doing 
harm only, courts might differ, but some no doubt 
would think that the privilege was not made out. 10 
What the effect of bad faith without malice would 
be Is outside my subject. 

It will be seen that the external standard applied 
for the purpose of seeing whether the defendant had 
notice of the probable consequences of his act, has 
little or nothing to do with the question of privilege. 
The defendant is assumed to have had notice of the 



9 See Morasse v. Brochu, 151 Mass. 567; Tasker u, Stanley, 153 
Mass. 148; Delz v. Winfree, 80 Texas, 400, 40$. The cases often are 
ob'scure as to the precise nature of the act done, which seems to me 
a most important fact. In Lumley v. Gye, 2 El. & BL 216, the allega- 
tion was that the defendant "enticed and procured" the third person 
to break the contract. In Bowen t/. Hall, 6 Q.B.D. 333, the defendant 
Hall persuaded another to break his contract (pp. 338, 339). In Old 
Dominion Steamship Co. v. McKenna, 30 Fed. Rep. 48, the defendant 
"procured plaintiff's workmen" to leave their work, and so on. 

10 See Stevens v. Sampson, 5 Ex. D. S3* 



126 COLLECTED LEGAL PAPERS 

probable consequences of his act, otherwise the ques- 
tion of privilege does not arise. Generally, the harm 
complained of is not only foreseen but intended. If 
there is no privilege, the difference between notice 
of consequences and malice is immaterial. If the 
privilege is absolute, or extends to malicious acts, of 
course it extends to those which are not so. If the 
privilege is qualified, the policy in favor of the de- 
fendant's freedom generally will be found to be quali- 
fied only to the extent of forbidding him to use for 
the sake of doing harm what is allowed him for the 
sake of good. Suppose, for instance, advice is given 
which manifestly tends to injure the plaintiff, but 
without thinking of him in fact, and that the advice 
would be privileged unless given in bad faith or 
maliciously, if expressly directed against the plaintiff. 
The advice could not be given maliciously as against 
the plaintiff unless he either was thought of, or was 
embraced in a class which was thought of. 

Perhaps one of the reasons why judges do not 
like to discuss questions of policy, or to put a deci- 
sion in terms upon their views as law-makers, is that 
the moment you leave the path of merely logical 
deduction you lose the illusion of certainty which 
makes legal reasoning seem like mathematics. But 
the certainty is only an illusion, nevertheless. Views 
of policy are taught by experience of the interests 
of life. Those interests are fields of battle. What- 
ever decisions are made must be against the wishes 
and opinion of one party, and the distinctions on 
wMdh. they go will be distinctions of degree* Even 



PRIVILEGE, MALICE, AND INTENT 127 

the economic postulate of the benefit of free compe- 
tition which I have mentioned above, is denied by 
an important school. 

Let me illustrate further. In England, it is lawful 
for merchants to combine to offer unprofitably low 
rates and a rebate to shippers for the purpose of 
preventing the plaintiff from becoming a competitor, 
as he has a right to do, and also to impose a forfeiture 
of the rebate, and to threaten agents with dismissal 
in case of dealing with him. 11 But it seems to be 
unlawful for the officer of a trade union to order the 
members not to work for a man if he supplies goods 
to the plaintiff, for the purpose of forcing the plain- 
tiff to abstain from doing what he has a right to do. 12 

In the latter case the defendant's act, strictly, was 
giving an order, not refusing to contract; but per- 
haps the case would have been decided the same way 
if the same course had been adopted by unanimous 
vote of the union. 13 So the right to abstain from 
contracting is not absolutely privileged as against 
interference with business. The combination and 
the intent to injure the plaintiff, without more, do 
not seem to be the ground. Both those elements were 
present to an equal degree in the Mogul Steamship 
Company's case. It is true the jury found malice. 

11 Mogul Steamship Company, Limited, V. McGregor, 1892, App. 
Cas. 25 ; 23 Q.B.D. 598. See also Bowen v. Matheson, 14 Allen, 499 
(1867); Bohn Manufacturing Company v. HoIIis, 55 N.WJL 1119 
(Minnesota, 1893). 

12 Temperton v. Russell, 1893, i Q. B. 7*5- 

is See Carew v. Rutherford, 106 Mass, i, and the cases below, as 
to combination. See, also, the further comments toward the end of 
this article. 



128 COLLECTED LEGAL PAPERS 

But looking at the evidence, the instructions of the 
judge, and the judgments, evidently they did not 
mean that the ultimate motive of the defendants was 
not to benefit themselves. The defendants meant to 
benefit themselves by making the plaintiff submit, 
just as, in the other case, the defendants meant to 
benefit themselves by driving the plaintiff away. It 
might be said that the defendants were free not to 
contract, but that they had no right to advise or 
persuade the contractors who would have dealt with 
the plaintiff not to do so, and that, by communicating 
the union's willingness to deal with the contractors, 
if they would not deal with the plaintiff, the defend- 
ants were using such persuasion. But if this refine- 
ment is not a roundabout denial of the freedom not 
to contract, since a man hardly is free in his abstain- 
ing unless he can state the terms or conditions upon 
which he intends to abstain, at all events the same 
mode of reasoning could be used in the cases where 
the defendant escapes. The ground of decision 
really comes down to a proposition of policy of rather 
a delicate nature concerning the merit of the par- 
ticular benefit to themselves intended by the defend- 
ants, and suggests a doubt whether judges with differ- 
ent economic sympathies might not decide such a 
case differently when brought face to face with the 
issue. 

Another illustration may be drawn from other 
cases upon boycotts. Acts which would be privi- 
leged if done by one person for a certain purpose 
may be held unlawful if done for the same purpose 



PRIVILEGE, MALICE, AND INTENT 129 

in combination. 14 It is easy to see what trouble 
may be found in distinguishing between the combi- 
nation of great powers in a single capitalist, not to 
speak of a corporation, and the other form, of combi- 
nation. 15 It is a question of degree at what point 
the combination becomes large enough to be wrong, 
unless the knot is cut by saying that any combina- 
tion however puny is so. Behind all is the question 
whether the courts are not flying in the face of the 
organization of the world which is taMng place so 
fast, and of its inevitable consequences. I make 
these suggestions, not as criticisms of the decisions, 
but to call attention to the very serious legislative 
considerations which have to be weighed. The 
danger is that such considerations should have their 
weight in an inarticulate form as unconscious preju- 
dice or half conscious inclination. To measure them 
justly needs not only the highest powers of a judge 
and a training which the practice of the law does 
not insure, but also a freedom from prepossessions 
which is very hard to attain. It seems to me desir- 
able that the work should be done with express 
recognition of its nature. The time has gone by 
when law is only an unconscious embodiment of the 
common will. It has become a conscious reaction 

14 See State t>. Donaldson, 32 NJ. 191; State u. Glidden, 55 Conn. 
46; Camp v. Commonwealth, 84 Va. 927; Lucke v. Clothing Cutters 1 & 
Trimmers' Assembly No. 7, 507, K. of L., 26 AtL R. 5t>5; Jackson ti. 
Stanfield, 36 NJE.R. 345 (Indiana, 1894) ; Mogul Steamship Company 
v. McGregor, 23 Q.B.D. $98, 616 (1892) ; App, Cas. 25, 45. The cases 
are not quite unanimous. Bohn Manufacturing Co. v. Hollis, 55 N,W.R. 
1119 (Minnesota, 1893). 

is 23 Q.BJ). 617. 



I3 o COLLECTED LEGAL PAPERS 

upon itself of organized society knowingly seeking to 
determine its own destinies. 

To sum up this part of the discussion, when a 
responsible defendant seeks to escape from liability 
for an act which he had noticed was likely to cause 
temporal damage to another, and which has caused 
such damage in fact, he must show a justification. 
The most important justification is a claim of privi- 
lege. In order to pass upon that claim, it is not 
enough to consider the nature of the damage, and 
the effect of the act, and to compare them. Often 
the precise nature of the act and its circumstances 
must be examined. It is not enough, for instance, 
to say that the defendant induced the public, or a 
part of them, not to deal with the plaintiff. We 
must know how he induced them. If by refusing 
to let them occupy a building, or to employ them, 
the answer may be peremptory in his favor, without 
regard to other circumstances. If by acts wrongful 
for other reasons, the answer falls outside my sub- 
ject. If by advice, or combined action not other- 
wise unlawful, motive may be a fact of the first 
importance. It is entirely conceivable that motive, 
in some jurisdictions, should be held to affect all, 
or nearly all, claims of privilege. The cases which 
I have cited, by way of illustration, come from 
different States, and might not be regarded as being 
so consistent with each other as I have assumed them 
to be. But in all such cases the ground of decision 
is policy; and the advantages to the community, on 
the one side and the other, are the only matters really 



PRIVILEGE, MALICE, AND INTENT 131 

entitled to be weighed. I only wish to add that thus 
far, when the act of a third person is nearer to the 
harm than the act of the defendant, I have assumed 
the former to be lawful. I have said nothing as yet 
of privilege in connection with wrongful acts of 
others. Also I have left on one side exceptional 
cases where the act induced by the defendant would 
have been a tort or a crime had the third person 
had his knowledge, for instance, the innocent giving 
of a poisoned apple. If the harm were of a more 
serious nature than loss of business, that naturally 
would narrow the privilege, but it is not likely to be 
so in the cases which I have had in mind. 

I now pass to an entirely different dass of cases. 
In these, intent to produce the harm complained of 
has an importance of its own, as distinguished from 
notice of danger on the one side, and from actual 
malice on the other. To begin at a little distance, 
one of the difficulties which must occur to every 
one in thinking of the external standard of liability 
is: if notice so determined is the general ground, why 
is not a man who seUs fire-arms answerable for 
assaults committed with pistols bought of him, since 
he must be taken to know the probability that, sooner 
or later, some one will buy a pistol of him for some 
unlawful end? I do not think that the whole answer 
to such questions is to be found in the doctrine of 
privilege. Neither do I think that any instruction 
is to be got from the often-repeated discussions as 
to cause. It is said that the man whose wrong-doing 
is nearest to the injury is the only cause of it. But, 



1 3 2 COLLECTED LEGAL PAPERS 

as is pointed out in Hayes v. Hyde Park, 18 a man 
whose act is nearest to the injury is as much a cause 
when his act is rightful, as when it is wrongful. Yet 
an intervening act may not exonerate the defendant. 

The principle seems to be pretty well established, 
in this country at least, that every one has a right 
to rely upon his fellow-men acting lawfully, and, 
therefore, is not answerable for himself acting upon 
the assumption that they will do so, however im- 
probable it may be. There may have been some 
nibbling at the edges of this rule in strong cases, for 
instance, where only the slight negligence of a third 
person intervenes, or where his negligence plays only 
a subordinate part, but the rule hardly will be dis- 
puted. It applies in favor of wrong-doers as well as 
others. The classical illustration is, that one who 
slanders another is not liable for the wrongful repe- 
tition of the slander without his authority; but the 
principle is general. 17 If the repetition were privi- 
leged, and so rightful, and also were manifestly 
likely to happen, the law might be otherwise. 18 

But the case is different when a defendant has not 
stopped at the point of saying, I take it for granted 
that my neighbors will keep to the law, and I shall 
not let myself be checked in doing what I like, by 
the danger which there would be, if they acted un- 

** 153 Mass, 514. 

IT Ward i). Weeks, 7 Bing. 211, 215; Cuff v. Newark & New York 
R.R., 6 Vroom, 17, 32; Clifford v. Atlantic Mills, 146 Mass. 47; Tasker 
v. Stanley, 153 Mass. 148, 150, 

18 Elmer v. Fessenden, 151 Mass. 359, 362, and cases cited. Sec 
Hayes v, Hyde Park, 153 Mass. 514. 



PRIVILEGE, MALICE, AND INTENT 133 

lawfully; when, Instead, he not only has expected 
unlawful conduct, but has acted with the intent to 
bring about consequences which could not happen 
without the help of such unlawful acts on the part of 
others. The difference is illustrated by the differ- 
ence between the general right of a landowner, as 
against trespassers, to put his land in what condition 
he likes, and his liability, even to trespassers (with- 
out notice), for man-traps or dog-spears. In the 
latter case, he has contemplated expressly what he 
would have had a right to assume would not happen, 
and the harm done stands just as if he had been on 
the spot and had done it in person. His intent may 
be said to make him the last wrong-doer. 19 

So when the wrongful act expected is that of a 
third person, and not of the plaintiff, the defendant 
may be liable for the consequences of it. There is 
no doubt, of course, that a man may be liable for the 
unlawful act of another, civilly as well as criminally, 
and this now is pretty well agreed when the act is 
a breach of contract as well as when it is a tort. 20 
He is liable, if having authority he commands it; he 
may be liable if he induces it by persuasion. I do 
not see that it matters how he knowingly gives the 
other a motive for unlawful action, whether by fear, 
fraud, or persuasion, if the motive works. But, in 
order to take away the protection of his right to rely 



19 Bird v. Holbrook, 4 Bing. 628, 641, 642. See Jordin v. Cramp, 8 
M. & W. 78; Chenery v. Fitchburg R.R., 160 Mass. 211, 213, 214. 

20 Lumley v. Gye, 2 EL & BL 216; i Ames & Smith, Cases on 
Torts, 600, 612, note by Professor Ames. 



134 COLLECTED LEGAL PAPERS 

upon lawful conduct, you must show that he intended 
to bring about consequences to which that unlawful 
act was necessary. Ordinarily, this is the same as 
saying that he must have intended the unlawful act. 
To sum the matter up in a rule, where it is sought to 
make a man answerable for damage, and the act of 
a third person is nearer in time than the defendant's 
to the harm, if the third person's act was lawful, it 
stands like the workings of nature, and the question 
is whether it reasonably was to be anticipated or 
looked out for; but if the third person's act was un- 
lawful, the defendant must be shown to have 
intended consequences which could not happen with- 
out the act 21 

Although actual intention is necessary in this class 
of cases, malice commonly is not so, except so far as 
the question of liability for an intervening wrong- 
doer is complicated with a question of privilege. 
The damage is assumed to be inflicted unlawfully, 
since the act of the third person which is nearest to 
it is assumed to be unlawful If the defendant has 
no notice that the third person's act will or may be 
unlawful, he is free on general principles. But, not- 
withstanding the reserves of Bowen v. Hall, 22 if he 

21 I venture to refer to a series of cases in which my views will 
be found illustrated. Hayes v. Hyde Park, i$3 Mass. 514; Burt v. 
Advertiser Newspaper Co., 154 Mass. 238, 347 J Tasker v. Stanley, i$3 
Mass. 148. [Note that, in this case, it did not appear that the conduct 
advised (the departure of the plaintiff's wife) would have been unlaw- 
ful in any sense, on the facts assumed as the basis of the advice. It did 
not appear what those facts were. The question of privilege, therefore, 
was the main one.] Elmer v. Fessenden, 151 Mass. 359, 32; Clifford v. 
Atlantic Cotton Mills., 146 Mass. 47. 

a* 6 Q.B.D. 333, 338. 



PRIVILEGE, MALICE, AND INTENT 135 

knows the act will be unlawful, it seems plain that 
persuasion to do it will make him liable as well when 
not malicious as when malicious. I cannot believe 
that bona fide advice to do an unlawful act to the 
manifest harm of the plaintiff ought to be any more 
privileged than such advice, given maliciously, to do 
a lawful act. Of course, I am speaking of effectual 
advice. It seems to me hard for the law to recog- 
nize a privilege to induce unlawful conduct. But, 
whether there is such a privilege or not, what I am 
driving at is, that apart from privilege there is no 
defence; that is to say, that malice is not material, 
on any other ground than that of privilege, to liability 
for the wrongful act of another man. 

At this point, then, we have come again upon the 
question of privilege. When the purpose of the de- 
fendant's act is to produce the result complained of 
by means of illegal acts of third persons, his privilege 
will be narrower than when he intends to induce only 
legal acts. As I have said, I do not suppose that 
the privilege extended to honest persuasion to do 
harm to the plaintiff by lawful conduct, would extend 
to similar persuasion to do it by unlawful conduct. 
Take acts of which the privilege is greater. Could a 
man refuse to contract with A unless he broke his 
contract with B? There are cases by respectable 
courts which look as if he could not. 23 What I have 
called heretofore the privilege not to contract really 

23 Tcmperton v. Russell (1893), i Q.B1X 7*5, mentioned above for 
a different point. In this case, there was the additional element of 
combination. See the other cases cited above, p. 129, n. 14. 



I 3 6 COLLECTED LEGAL PAPERS 

is only the negative side of a privilege to mate con- 
tracts. I stated it in the negative way in order to 
make the claim of an absolute privilege more plaus- 
ible. But the right not to contract in a certain event, 
and to say that you will not, means nothing unless 
it is implied that you offer a contract, that is, an 
act on your part, in the other event. If no such offer 
is understood, then you simply refuse to contract, 
whatever happens, which undoubtedly you may do. 
But there is no absolute privilege to make agree- 
ments which are not unlawful on their face, that is 
to say, which do not necessarily and always tend to 
produce a result that the law wishes to prevent. An 
agreement may be unlawful, because under the par- 
ticular circumstances it tends to produce such a 
result, although in general harmless. 

The question has arisen, how close the connection 
must be between an agreement for instance, a 
sale and the result sought to be prevented, in 
order to make the sale unlawful. I presume that 
the same degree of connection which would have that 
effect would make the seller liable if the result in 
question was a tort. In Graves v. Johnson, 24 where 
intoxicating liquor was found to have been sold in 
Massachusetts, "with a view to" an illegal resale by 
the purchaser in Maine, a majority of the court inter- 
preted the words quoted as meaning that the seller 
intended that the buyer should resell unlawfully, 
and was understood by the latter to be acting in aid 
of that purpose, and held the sale unlawful. But it 

24 156 Mass. an. 



PRIVILEGE, MALICE, AND INTENT 137 

may be conjectured that the decision would have 
been different if the seller merely had known of the 
buyer's intent without encouraging or caring about it. 
In questions of privilege, the nature of the de- 
fendant's act, the nature of the consequences, and 
the doseness of the bond between them, may vary 
indefinitely. We may Imagine the conduct to be of 
the most highly privileged kind, like the use of land, 
and to consist of imposing conditions upon the letting 
of rooms or the removal of a building cutting off a 
view. We may imagine the conditions to be stated 
with intent, but without any persuasion or advice, 
that they should be satisfied, and we may imagine 
them to be illegal acts anywhere from murder down 
to breach of a contract to take the Herald for a 
month. Interesting cases of such a kind might be 
framed for a moot court, although I hardly expecf 
to meet one in practice. But, as I have said, my ob- 
ject is not to decide cases, but to make a little clearer 
the method to be followed in deciding them. 



LEARNING AND SCIENCE* 

SPEECH AT A DINNER OF THE HARVARD LAW SCHOOL 

ASSOCIATION IN HONOR OF PROFESSOR 

C. C. LANGDELL, JUNE 25, 1895 

MR. PRESIDENT AND GENTLEMEN OF THE ASSOCIA- 
TION: 

As most of those here have graduated from the 
Law School within the last twenty-five years, I know 
that I am in the presence of very learned men. For 
my own part, lately my thoughts have been turned to 

"old, unhappy, far-off things, 
And battles long ago"; 

and when once the ghosts of the dead fifers of thirty 
years since begin to play in my head, the laws are 
silent. And yet as I look around me, I think to 
myself, like Correggio, "I too am, or at least have 
been, a pedagogue." And as such I will venture a 
reflection. 

Learning, my learned brethren, is a very good 
thing. I should be the last to undervalue it, having 
done my share of quotation from the Year Books. 
But it is liable to lead us astray. The law, so far 
as it depends on learning, is indeed, as it has been 
called, the government of the living by the dead. 

* From Speeches (1913), Little, Brown, & Co. 
138 



LEARNING AND SCIENCE 139 

To a very considerable extent no doubt it is in- 
evitable that the living should be so governed. The 
past gives us our vocabulary and fixes the limits of 
our imagination ; we cannot get away from it. There 
is, too, a peculiar logical pleasure in making manifest 
the continuity between what we are doing and what 
has been done before. But the present has a right 
to govern itself so far as it can; and it ought always 
to be remembered that historic continuity with the 
past is not a duty, it is only a necessity. 

I hope that the time is coming when this thought 
will bear fruit. An ideal system of law should draw 
its postulates and its legislative justification from 
science. As it is now, we rely upon tradition, or 
vague sentiment, or the fact that we never thought 
of any other way of doing things, as our only warrant 
for rules which we enforce with as much confidence 
as if they embodied revealed wisdom. Who here can 
give reasons of any different kind for believing that 
half the criminal law does not do more harm than 
good? Our forms of contract, instead of being made 
once for all, like a yacht, on lines of least resistance, 
are accidental relics of early notions, concerning 
which the learned dispute. How much has reason 
had to do in deciding how far, if at all, it is expedient 
for the State to meddle with the domestic relations? 
And so I might go on through the whole law. 

The Italians have begun to work upon the notion 
that the foundations of the law ought to be scientific, 
and, if our civilization does not collapse, I feel pretty 
sure that the regiment or division that follows us 



140 COLLECTED LEGAL PAPERS 

will carry that flag Our own word seems the last 
always; yet the change of emphasis from an argu- 
ment in Plowden to one in the time of Lord Ellen- 
borough, or even from that to one in our own day, 
Is as marked as the difference between Cowley's 
poetry and Shelley's. Other changes as great will 
happen. And so the eternal procession moves on, we 
in the front for the moment; and, stretching away 
against the unattainable sky, the black spearheads 
of the army that has been passing in unbroken line 
already for near a thousand years. 



EXECUTORS * 

Ax the present day executors and administrators 
hold the assets of the estate In a fiduciary capacity. 
Their rights and liabilities in respect of the fund in 
their hands, are very like those of trustees. But 
this way of regarding them is somewhat modern. I 
wish to call attention to several changes in the law 
which have taken place at different times and with- 
out reference to each other, for the purpose of sug- 
gesting that they are witnesses of an older condition 
of things in which the executor received his testator's 
assets in his own right. As usually is the case 
with regard to a collection of doctrines of which 
one seeks to show that they point to a more general 
but forgotten principle, there can be found a plaus- 
ible separate explanation for each or for most of 
them, which some, no doubt, will regard as the last 
word to be said upon the matter. 

I have shown elsewhere that originally the only 
person liable to be sued for the debts of the deceased, 
if they were disputed and had not passed to judgment 
in the debtor's lifetime, was the heir. 1 In GlanvflPs 

* Harvard Law Review, Vol. IX, 42. (1895.) 

i Early English Equity, i Law Quart. Rev. 165. The Common 
Law, 348. Bracton 4070, 61, o8a, ioia, 1130. The article referred to 
in the Law Quarterly Review shows the origin and early functions of 
the executor. It is not necessary to go into them here. 

141 



142 COLLECTED LEGAL PAPERS 

time, if the effects of the ancestor were not sufficient 
for the payment of his debts the heir was bound to 
make up the deficiency out of his own property. 2 
In the case of debts to the king, this liability con- 
tinued as late as Edward III., 8 royalty like religion 
being a conservator of archaisms. The unlimited 
liability was not peculiar to England. 4 While it con- 
tinued we may conjecture with some confidence that 
a judgment against the heir was not confined to the 
property which came to him from his ancestor, and 
that such property belonged to him outright. At a 
later date, M. Viollet tells us, the French customary 
law borrowed the benefit of inventory from the 
Roman law of Justinian. The same process had 
taken place in England before Bracton wrote. But 
in the earliest sources it looks as if the limitation of 
liability was worked out by a limitation of the 
amount of the judgment, not by confining the judg- 
ment to a particular fund. 6 

2 "Si vero non suffidunt res defuncti ad debita persolvenda, tune 
quidem haeres ejus defectum ipsum de suo tenetur adimplere: ita dico 
si habuerit aetatem haeres ipse." GlanviU, Lib. 7, C. 8. Regiam 
Majestatem, Book 2, C. 39, 3- 

s 2 Rot. ParL 240, pi. 35. St. 3 Ed. I., C. 19. 

4 Ass. Jems., Bourgeois, C. cxciii. 2 Beugnot, 130. Paul Viollet, 
Hist, du Droit Franc.., 2d ed. 829. 

6 Viollet, op. cti. The Common Law, 347, 348. "Haeres autem 
defuncti tenebitur ad debita preadecessorts sui acquietanda eatenus 
quatenus ad ipsum peruenerit, sci. de haereditate defuncti, et non 
ultra" etc. Bracton, 61 a. "Notandum tamen est, quod nuUus de 
antecessoris debito tenetur respondere ultra valorem huius, quod de eius 
keredUate dignosatur possidere" Somma, Lib. 2, C. 22, s, & 1 
Ludewig, Reliq. Manuscript, 308, 309. Grand Coustum. C. 88. Com- 
pare also St Westm. IL (13 Ed. L) C. 19, as to the liability of the 



EXECUTORS 143 

As was shown In the article above referred to, the 
executor took the place of the heir as universal suc- 
cessor within the limits which still are familiar, 
shortly after Bracton wrote. His right to sue and 
the right of others to sue him in debt seemed to have 
been worked out at common law. 6 It hardly needs 
argument to prove that the new rights and burdens 
were arrived at by treating the executor as standing 
in the place of the heir. The analogy relied on is 
apparent on the face of the authorities, and in books 
of a later but still early date we find the express state- 
ment, executores wnversales loco faaeredis mnt? or 
as it is put in Doctor and Student, "the heir, which 
in the laws of England is called an Executor." 

Now when executors thus had displaced heirs par- 
tially in the courts, the question is what was their 
position with regard to the property in their hands. 
Presumably it was Hke that of heirs at about the 
beginning of the fourteenth century, but I have had 
to leave that sofnewhat conjectural. The first mode 
of getting at an answer is to find out, if we can, what 
was the form of judgment against them. For if the 

ordinary: "Obttgetw decetero Ordwwms ad respondendum de deb&is, 
quatenns bona dejimcti snfficwnt eodem m&do quo executives knjus 
modo erespondtre tmerentur si testamcnivm fecisset:* See the cases 
stated below. I know of no early precedents or forms of judg- 
ments against heirs. I wish that Mr. Maitland would give the 
world the benefit of hfc knowledge and command of the sources on the 
matter. Later the judgments against heirs was limited to asaets de- 
scended. Townesend, Second Book of Judgments, 67 pL 26. 

Y. B. 20 & 2i Ed. 1^ 374; 3<> Ed. L, 238; Ed* IH-, *4* 
Id. 186. (Rolls ed.) 

* Lyndwood, ProvmciaJe. Ob. 3, Tit 13, CL 5- (Sfcrf****** borne 
memoriae), note, at woid Intestate. Dr. and Stud. Dial I, Ch. 19- 



144 COLLECTED LEGAL PAPERS 

judgment ran against them personally, and was not 
limited to the goods of the deceased in their hands, 
It is a more than probable corollary that they held 
those assets in their own right. The best evidence 
known to me is a case of the year 1292 (21 Ed. I.) 
in the Rolls of Parliament. 8 Margery Moygne re- 
covered two judgments against Roger Bertelmeu as 
executor of William the goldsmith. In the first case 
he admitted the debt and set up matter in discharge. 
This was found against him except as to 60, as to 
which the finding was in his favor, and the judgment 
went against him personally for the residue. In the 
second case the claim was for 200 marks, of which 
the plaintiff's husband had endowed her ad ostium 
ecclesiae. The defendant pleaded that the testator 
did not leave assets sufficient to satisfy his creditors. 
The plaintiff replied that her claim was preferred, 
which the defendant denied. The custom of bor- 
oughs was reported by four burgesses to be as 
the plaintiff alleged, and the plaintiff had a judg- 
ment against the defendant generally. The defend- 
ant complained of these judgments in Parliament, 
and assigned as error that there came to his hands 
only 27 at most, and that the two judgments 
amounted to 40 and more. The matter was com- 
promised at this stage, but enough appears for my 
purposes. If the defendant was right in his con- 
tention, it would follow in our time that the judg- 
ment should be de bonis testatoris, yet it does not 

8 i Rot. Parl. 107, 108. It may be remarked, by the way, that an 
excellent example of trustee process will be found in this case. 



EXECUTORS 145 

seem to have occurred to Mm to make that sug- 
gestion. He assumed, as the court below assumed, 
that the judgment was to go against him personally* 
The limitation for which he contended was in the 
amount of the judgment, not in the fund against 
which it should be directed. 

There is some other evidence that at this time, 
and later, the judgment ran against the executor 
personally, and that the only limitation of liability 
expressed by it was in the amount. In the first case 
known to me in which executors were defeated on a 
plea of plene administramt it was decided that the 
plaintiff should recover of the defendants "without 
having regard to whether they had to the value of 
the demand/ 59 Afterwards it was settled that in 
such cases the judgment for the debt should be of 
the goods of the deceased, and that the judgment 
for the damages should be general. 10 But whether 
the first case was right in its day or not, the material 
point is the way in which the question is stated. The 
alternatives are not a judgment de bonis testatoris 
and a general judgment against the defendants, but 
a judgment against the defendants limited to the 
amount in their hands, and an unlimited judg- 
ment against them. 

But if it be assumed that a trace of absolute 
ownership still was shown in the form of the judg- 

Y. B. 17 Ed. HI. 66, pi 83. 

10 Y. B. ii Hen. IV. 5, pi. n. Skrene in 7 Hen. IV. 12, 13, pL 
8. Martin in 9 Hen. VI. 44, pi. 26. Danby in 11 Hen. VI. 7, 8, pL 12. 
Dyer, 32 a, pL 2. i Roll. Abr. 931, D. pi. 3. i Wms. Saund. 336, n. 10. 



146 COLLECTED LEGAL PAPERS 

ment, when we come to the execution we find a dis- 
tinction between the goods of the testator and those 
of the executor already established. In 12 Edward 
III. a judgment had been recovered against a parson, 
who had died. His executors were summoned, and 
did not appear. Thereupon the plaintiff had fieri 
facias to levy on the chattels of the deceased in the 
executors' hands (de lever ses chateux qil avoient 
entre may us des biens la mort), and on the sheriff 
returning that he had taken 2os and that there were 
no more, execution was granted of the goods of the 
deceased which the executors had in their hands 
on the day of their summons, or to the value out of 
the executors' own goods if the former had been 
eloigned. 11 

I now pass to two other rules of law for each 
of which there is a plausible and accepted explana- 
tion, but which I connect with each other and with 
my theme. In former days, I was surprised to read 
in Williams on Executors, that the property in the 
ready money left by the testator "must of necessity 
be altered; for when it is intermixed with the execu- 
tor's own money, it is incapable of being distinguished 
from it, although he shall be accountable for its 
value." 12 What right, one asked oneself, has an 
executor to deal in that way with trust funds? In 



n Y. B. 13 Ed. III. 398-401 (A.D. 1338). Ace. 2 Rot. Parl. 397, 
No. 1 10 (Ed. HI.)- See also the intimation of Wychingham, J., in 40 
Ed. m. 15, pL i. Fleta, Lib. 2, C. 57, f 6. 

12 i Wms. Exors. (7th ed.), 646. In the ninth edition this is quaMed 
slightly hy the editor in a note. (9th ed.) 566, 567 and n. (p). 



EXECUTORS 147 

this Commonwealth at least the executor would be 
guilty of a breach of duty if he mingled money of 
his testator with his own. Another passage in Wil- 
liams shows that we must not press his meaning too 
far. It is stated that money of the testator which 
can be distinguished does not pass to a bankrupt 
executor's assignee. 13 The principal passage merely 
was repeated from the earlier text-books of Went- 
worth and Toller. In Wentworth the notion appears 
to be stated as a consequence of the difficulty of dis- 
tinguishing pieces of money of the same denomina- 
tion from each other a most impotent reason. 14 
There is no doubt that similar arguments were used 
in other cases of a later date than Wentworth. 15 
But I prefer to regard the rule as a survival, es- 
pecially when I connect it with that next to be men- 
tioned. 

As late as Lord Ellenborough's time it was the 
unquestioned doctrine of the common law that the 
executor was answerable absolutely for goods which 
had come into his possession, and that he was not 
excused if he lost them without fault, for instance, 
by robbery. 16 Now it is possible to regard this as 

is x Wms. Exors. 9th ed. 559. Howard v. Jemmett, 2 Burr. 1368, 
1369, note; Farr v. Newman, 4 T.R. 621, 648. 

i4 Wentworth, Executors (14^ ed. Philadelphia, 1832), 198. 

is Whitecomb v. Jacob, i Salk. 160; Ford v. Hopkins, I Salk, 283, 
284; Ryafl v. Rolle, i Atk. 165, 172; Scott v. Surman, Willes, 400, 
403, 404. Rightly condemned quoad hoc in Re HaBetfs Estate, 13 Ch. 
D. 696, 714, 715. See also Miller v. Race, i Burr. 452, 457 S.C. i Srn. 
L. C. 

i Crosse t>. Smith, 7 East, 246, 258. 



148 COLLECTED LEGAL PAPERS 

merely one offshoot pf the early liability of bailees 
which still lingered alive, although the main root had 
rotted and had been cut a century before by Chief 
Justice Pemberton, and by the mock learning of Lord 
Holt. 37 It is explained in that way by Wentworth/ 8 
who wrote before the early law of bailment had been 
changed, but with some suggestions of difference and 
mitigation. If this explanation were adopted we 
only should throw the discussion a little further back, 
upon the vexed question whether possession was title 
in primitive law. But it is undeniable that down to 
the beginning of this century the greatest common- 
law judges held to the notion that the executor's 
liability stood on stronger grounds than that of an 
ordinary bailee, and this notion is easiest explained 
as an echo of a time when he was owner of the 
goods, and therefore absolutely accountable for their 
value. In the Chancery, the forum of trusts, it is 
not surprising to find a m?lder rule laid down at an 
earlier date, and no doubt* the doctrine of equity now 
has supplanted that of the common law/ 9 

There is no dispute, of course, that in some sense 
executors and administrators have the property in 
the goods of the deceased. 20 I take it as evidence 

17 King v. Viscount Hertford, 2 Shower, 172; Coggs V. Bernard, 
a Ld. Raym. 909. The Common Law, Lect. 5, esp. p. 19$. Morley v. 
Morley, 2 Cas. in Ch. 2. 

18 Executors (i4th ed.) 234. 

19 Lord Hardwicke in Jones v. Lewis, 2 Ves. Sen. 240, 241 (1751) ; 
Job v. Job, 6 Ch. D. 562 ; Stevens v. Gage, 55 N.H. 175. See Morley v. 
Morley, 2 Cas. in Ch. 2 (1678). 

2 Com, Dig. Administration (B. xo). Cf. Wms, Exors. 
cd.) 558. 



THE BAR AS A PROFESSION 157 

only conception of first-rate importance wMch has 
a Roman origin, so far as I know. 

Of course I recognize that a man hardly can be 
called accomplished in his profession who knows 
nothing of Roman law, and more particularly of the 
great Germans who have taught it in this century, 
but I am speaking of how to learn law for practice. 

The study of jurisprudence is a different matter. 
When properly taught, jurisprudence means simply 
the broadest generalization of the principles and the 
deepest analysis of the ideas at the bottom of an 
actual system. It is the same process, carried 
f urther, by which the law is carried out from particu- 
lar cases into general rules. A young man who has 
understood John Austin's tedious and often mistaken 
book has taken a real step forward, while Sir Henry 
Maine makes him feel as if his whole road were 
strewn with diamonds. 

The means of thoroughly understanding the law 
now within every one's reach are very different from 
those with which we had to content ourselves when 
I was a student. Studied as it may be studied and 
as there are now many encouragements to study it, 
Burke no longer would fear, I think, that it would 
sharpen the mind by narrowing it. 

One of the courses to be pursued is the anatomy 
of legal ideas worked out by the English school of 
jurisprudence; another is the embryology of the 
same conceptions to be found in history as the Ger- 
mans have taught it to the world. 

With regard to the chances of success, I remember 



158 COLLECTED LEGAL PAPERS 

that the late Lord Justice Bowen once told me, when 
he was at the bar and already successful, that he 
thought that beside patience and talent a man must 
have luck. But, so far as I have noticed, luck gen- 
erally comes to patience and talent, if coupled with 
love of the thing, as the Lord Chief Justice so truly 
adds. 

In this country there seems to be as good a chance 
to succeed at the bar as in other callings, and I 
should not think that much depended on luck for 
a man of the right sort. Sometimes, too, the law has 
been the starting-point for a business career, and 
always it has offered an opening into politics. 

For the last quarter of a century a large part of 
our best talent has gone into business rather than 
into politics, doubtless because it was more needed 
there and therefore the rewards were higher. It has 
been more important that the country should be de- 
veloped than that it should be governed by the great- 
est skill. But there can be no doubt that we need 
all the ability we can get in our government at the 
present time and that we shall want, if we can get 
them, trained lawyers as well as economists in our 
legislatures. 

But here again the situation is different from that 
in England; and political life generally means giving 
up the law for the time and rather a falling off in 
legal capacity, although I should not advise any one 
to sleep on that consideration if he should be trying 
a case against Senator Hoar. 

In one of the most beautiful pieces of English in 



THE BAR AS A PROFESSION 259 

the world, the essay called The Lantern-Bearers, Mr. 
Robert Louis Stevenson shows us how In their hearts 
all men are idealists. The only criticism which I 
should make upon his adorable essay is that his ex- 
amples find their ideals outside their daily pursuits. 
George Herbert's 

"Who sweeps a room as for Thy laws, 
Makes that and th* action fine," 

has an intellectual as well as a moral meaning. If 
the world is a subject for rational thought it is all 
of one piece; the same laws are found everywhere, 
and everything is connected with everything else; 
and if this is so, there is nothing mean, and nothing 
In which may not be seen the universal law. 

The difference between gossip and philosophy lies 
only in one's way of taking a fact. The law may 
lead to high things those who stay in it as well as 
those who pass beyond but not above it to other 
forms of command. 



i6o COLLECTED LEGAL PAPERS 

A REJOINDER 

BY THE LORD CHIEF JUSTICE OF ENGLAOT) 

I HAVE read the comments on "The Bar as a Pro- 
fession/* by Mr. Justice Holmes, with interest and 
with some surprise. With much that the learned 
judge says I find myself in agreement. On two 
main points I find myself differing from him. In the 
first place I regard university training as much more 
important than the learned judge appears to do. 
Robust minds can do much to make good the want of 
it, but to make an accomplished lawyer in the sense 
in which Chief Justice Marshall, Lord Mansfield 
and Sir William Grant, amongst others, answered 
that description, I regard university culture as almost 
indispensable. 

My surprise in the next place arises from the de- 
preciatory view which Mr, Justice Holmes seems to 
take of the value of the study of Roman law. Under 
that head I of course include not only the Corpus 
Juris, but also that body of text law, mainly German, 
which deals not only with the historical and scientific 
side of Roman law, but which, by modernizing it, has 
rejected much of the early Roman law now obsolete. 

No one can read the judgments of your great 
Chief Justice Marshall or the writings of Story or 
of Kent without seeing how much, in arrangement 
and in breadth of view, they owe to the study of 
Roman law. 



THE BAR AS A PROFESSION 161 

Mr. Justice Holmes speaks truly and with, just 
pride of the system of legal education in the United 
States, It is in my opinion far superior to that 
existing in these islands. Its superiority I think 
mainly consists in its systematic teaching of the his- 
torical and scientific aspects of law before the actual, 
practical, workaday law is dealt with. 

To the absence of this system I largely attrib- 
ute the facts which I deplore that with but 
few exceptions our legal treatises are analyses of 
decided cases, our legal arguments at the bar are 
a nice discrimination of those cases, and the deliver- 
ances from the judges but little more than able efforts 
to establish analogies or differences between the case 
in hand and reported authority. I think also the 
form if not the substance of legislation is injuriously 
affected by the same cause. 

If this state of things is to be remedied, it can 
only be by early training in law, historically and 
systematically taught, and I can imagine no such 
teaching from which the Roman law can be excluded. 
I need hardly say that in any study of comparative 
law the Roman system must find a prominent place. 

The learned judge speaks of the broader and more 
profound generalizations reached in our time. May 
I suggest to him that even now, after the lapse of 
centuries, the De regulis juris still speaks with a liv- 
ing voice? Again, I cannot agree that the main roots 
of our law are Prankish they are mainly of native 
growth and still less that the "last will" is almost 
the only conception of first-rate Importance which 



z62 COLLECTED LEGAL PAPERS 

originates in the Roman law. But I would prefer 
to suggest other authority than my own in favor of 
the views I propound. 

It happens that I have recently had to read the re- 
port known as that of the Gresham Commission 
(1894), before which were examined a number of 
distinguished men on the subject of the establish- 
ment of a legal faculty in connection with a teaching 
university in London. Amongst these were Lord 
Coleridge, Lord Bowen, Prof. J. Bryce, M, P. ? Lord 
Davey, Professor Westlake, and last, but by no 
means least, Prof. E. H. Emmott of the Johns Hop- 
kins University, Baltimore. Each of these high 
authorities was emphatic as to the importance of the 
study of Roman law In any high system of legal 
training. 

In The Bar as a Profession, I have suggested a 
high ideal of the accomplished lawyer one who 
may make a great advocate, a great judge, a great 
writer, or a great legislator, or all of these. I do not 
deny that without the liberal equipment which I would 
desire, men of ability may make large incomes and 
even have distinguished careers at the bar, but I 
maintain that their careers would have been still 
more distinguished, their marks on their generation 
graven still deeper, and their contributions to the 
wisdom of the world still weightier, had they pos- 
sessed it. 



THE BAR AS A PROFESSION 163 
A POSTSCRIPT 

BY ME. JUSTICE HOLMES 

I HAVE read the second article of the Lord Chief 
Justice, but I see no reason to change the opinions 
which I have expressed. I will only add a few words 
of explanation. 

I trust that it will be understood that I did not 
undervalue the moral or even the intellectual ad- 
vantages of a university education, but that I am 
speaking of its importance for what I may call a 
fighting success. 

In saying that the main roots of our law are Frank- 
ish I mean to deny the notion, which has been held, 
that they are Roman, rather than accurately to dis- 
criminate the particular folk-law to which we are 
most indebted. I do not think, however, that any 
of the most important conceptions of private law are 
of native origin in England. 

For further expression of my views I should have 
to refer to my book on The Common Law and to an 
article on "Early English Equity'* in the Law 
Quarterly Review. The leading ideas there advanced 
appear to me to have been followed in the main by 
the latest and most accomplished historians of Eng- 
lish law, Sir F. Pollock and Mr. Maitland. 



BROWN UNIVERSITY COMMENCE- 
MENT 1897* 

A UNIVERSITY is a place from which men start 
for the Eternal City. In the university are pictured 
the ideals which abide in the City of God. Many 
roads lead to that haven, and those who are here 
have traveled by different paths towards the goal. 
I do not know what better the travelers can do at a 
gathering like this, where for a moment the univer- 
sity becomes conscious of itself and of its meaning, 
than to report to those about to start something of 
their experiences and to give a hint of what is to 
be expected on the way . 

My way has been by the ocean of the law. On 
that I have learned a part of the great lesson, the 
lesson not of law but of life. There were few of 
the charts and lights for which one longed when I 
began. One found oneself plunged in a thick fog 
of details in a black and frozen night, in which 
were no flowers, no spring, no easy joys. Voices of 
authority warned that in the crush of that ice any 
craft might sink. One heard Burke saying that law 
sharpens the mind by narrowing it. One heard in 
Thackeray of a lawyer bending all the powers of a 
great inind to a mean profession. One saw that 

* Hitherto imprinted. 
164 



BROWN UNIVERSITY, 1897 165 

artists and poets shrank from it as from an alien 

world. One doubted oneself how It could be worthy 
of the interest of an intelligent mind. And yet 
one said to oneself , law is human it is a part 
of man, and of one world with all the rest. There 
must be a drift, if one will go prepared and have 
patience ? which will bring one out to daylight and 
a worthy end. You all have read or heard the 
story of Nansen and see the parallel which I use. 
Most men of the college-bred type in some form or 
other have to go through that experience of sailing 
for .the ice and letting themselves be frozen In. In 
the first stage one has companions, cold and black 
though it be, and if he sticks to it, he finds at last 
that there is a drift as was foretold. When he has 
found that he has learned the first part of Ms lesson^ 
that one is safe in trusting to courage and to time. 
But he has not yet learned all. So far his trials 
have been those of his companions. But if he is a 
man of high ambitions he must leave even his fellow- 
adventurers and go forth into a deeper solitude and 
greater trials. He must start for the pole. In plain 
words he must face the loneliness of original work. 
No one can cut out new paths in company. He does 
that alone. 

When he has done that and has turned misgiving 
into success he is master of himself and knows the 
secret of achievement. He has learned the second 
part of his lesson and is ready for the consummation 
of the whole. For he has gained another knowledge 
more fruitful than success. He knows now what he 



166 COLLECTED LEGAL PAPERS 

had divined at the outset, that one part of the uni- 
verse yields the same teaching as any other if only 
it is mastered, that the difference between the great 
way of taking things and the small between phil- 
osophy and gossip is only the difference between 
realizing the part as a part of a whole and looking at 
it in its isolation as if it really stood apart. The 
consummation to which I referred comes when he 
applies this knowledge to himself. He may put it 
in the theological form of justification by faith or in 
the philosophical one of the continuity of the uni- 
verse. I care not very much for the form if in some 
way he has learned that he cannot set himself over 
against the universe as a rival god, to criticize it, or 
to shake his fist at the skies, but that his meaning 
is its meaning, his only worth is as a part of it, as a 
humble instrument of the universal power. It seems 
to me that this is the key to intellectual salvation, as 
the key to happiness is to accept a like faith in one's 
heart, and to be not merely a necessary but a willing 
instrument in working out the inscrutable end. 



THE PATH OF THE LAW * 

WHEN we study law we are not studying a mystery 
but a well-known profession. We are studying what 
we shall want in order to appear before judges, or 
to advise people in such a way as to keep them out 
of court. The reason why it is a profession; why 
people will pay lawyers to argue for them or to 
advise them, is that in societies like ours the com- 
mand of the public force is intrusted to the judges 
in certain cases, and the whole power of the state 
will be put forth, If necessary, to carry out their 
judgments and decrees. People want to know under 
what circumstances and how far they will run the 
risk of coming against what is so much stronger than 
themselves, and hence it becomes a business to find 
out when this danger is to be feared. The object 
of our study, then, is prediction, the prediction of 
the incidence of the public force through the instru- 
mentality of the courts. 

The means of the study are a body of reports, 
of treatises, and of statutes, in this country and in 
England, extending back for six hundred years, and 
now increasing annually by hundreds. In these 

*An Address delivered by Mr. Justice Holmes, of the Supreme 
Judicial Court of Massachusetts, at the dedication of the new halt of 
the Boston University School of Law, on January 8, 1897. Copy- 
righted by O. W. Holmes, 1897. Harvard Law Review, Vol. 2L, 4S7- 

167 



168 COLLECTED LEGAL PAPERS 

sibylline leaves are gathered the scattered prophe- 
cies of the past upon the cases in which the axe will 
fall. These are what properly have been called the 
oracles of the law. Far the most important and 
pretty nearly the whole meaning of every new effort 
of legal thought is to make these prophecies more 
precise, and to generalize them into a thoroughly 
connected system. The process is one, from a law- 
yer's statement of a case, eliminating as it does all 
the dramatic elements with which his client's story 
has clothed it, and retaining only the facts of legal 
import, up to the final analyses and abstract uni- 
versals of theoretic jurisprudence. The reason why 
a lawyer does not mention that his client wore a white 
hat when he made a contract, while Mrs. Quickly 
would be sure to dwell upon it along with the parcel 
gilt goblet and the sea-coal fire, is that he foresees 
that the public force will act in the same way what- 
ever his client had upon his head. It is to make 
the prophecies easier to be remembered and to be 
understood that the teachings of the decisions of the 
past are put into general propositions and gathered 
into text-books, or that statutes are passed in a gen- 
eral form. The primary rights and duties with which 
jurisprudence busies itself again are nothing but 
prophecies. One of the many evil effects of the con- 
fusion between legal and moral ideas, about which 
I shall have something to say in a moment, is that 
theory is apt to get the cart before the horse, and 
to consider the right or the duty as something exist- 
ing apart from and independent of the consequences 



THE PATH OF THE LAW 169 

of Its breach, to which certain sanctions are added 
afterward. But, as I shall try to show, a legal duty 
so called is nothing but a prediction that if a man 
does or omits certain things he will be made to suffer 
in this or that way by judgment of the court; and so 
of a legal right. 

The number of our predictions when generalized 
and reduced to a system is not unmanageably large. 
They present themselves as a finite body of dogma 
which may be mastered within a reasonable time. 
It is a great mistake to be frightened by the ever- 
increasing number of reports. The reports of a 
given jurisdiction in the course of a generation take 
up pretty much the whole body of the law, and 
restate it from the present point of view. We could 
reconstruct the corpus from them if all that went 
before were burned. The use of the earlier reports 
is mainly historical, a use about which I shall have 
something to say before I have finished. 

I wish, if I can, to lay down some first principles 
for the study of this body of dogma or systematized 
prediction which we call the law, for men who want 
to use it as the instrument of their business to enable 
them to prophesy in their turn, and, as bearing upon 
the study, I wish to point out an ideal which as yet 
our law has not attained. 

The first thing for a business-like understanding 
of the matter is to understand its limits, and there- 
fore I think it desirable at once to point out and 
dispel a confusion between morality and law, which 
sometimes rises to the height of conscious theory, 



x 7 o COLLECTED LEGAL PAPERS 

and more often and indeed constantly is making 
trouble in detail without reaching the point of con- 
sciousness. You can see very plainly that a bad 
man has as much reason as a good one for wishing 
to avoid an encounter with the public force, and 
therefore you can see the practical importance of the 
distinction between morality and law. A man who 
cares nothing for an ethical rule which is believed 
and practised by his neighbors is likely nevertheless 
to care a good deal to avoid being made to pay 
money, and will want to keep out of jail if he can. 

I take it for granted that no hearer of mine will 
misinterpret what I have to say as the language 
of cynicism. The law is the witness and external 
deposit of our moral life. Its history is the history 
of the moral development of the race. The practice 
of it, in spite of popular jests, tends to make good 
citizens and good men. When I emphasize the 
difference between law and morals I do so with 
reference to a single end, that of learning and under- 
standing the law. For that purpose you must defi- 
nitely master its specific marks, and it is for that I 
ask you for the moment to imagine yourselves in- 
different to other and greater things. 

I do not say that there is not a wider point of 
view from which the distinction between law and 
morals becomes of secondary or no importance, as 
all mathematical distinctions vanish in presence of 
the infinite. But I do say that that distinction is of 
the first importance for the object which we are 
here to consider a right study and mastery of the 



THE PATH OF THE LAW 171 

law as a business with well understood limits, a body 
of dogma enclosed within definite lines. I have just 
shown the practical reason for saying so. If you 
want to know the law and nothing else, you must 
look at it as a bad man, who cares only for the 
material consequences which such knowledge enables 
him to predict, not as a good one, who finds his 
reasons for conduct, whether inside the law or out- 
side of it, in the vaguer sanctions of conscience. The 
theoretical importance of the distinction is no less, 
if you would reason on your subject aright. The 
law is full of phraseology drawn from morals, and 
by the mere force of language continually invites us 
to pass from one domain to the other without per- 
ceiving it, as we are sure to do unless we have the 
boundary constantly before our minds. The law 
talks about rights, and duties, and malice, and intent, 
and negligence, and so forth, and nothing is easier, 
or, I may say, more common in legal reasoning, than 
to take these words in their moral sense, at some 
stage of the argument, and so to drop into fallacy. 
For instance, when we speak of the rights of man 
in a moral sense, we mean to mark the limits of 
interference with individual freedom which we think 
are prescribed by conscience, or by our ideal, how- 
ever reached. Yet it is certain that many laws have 
been enforced in the past, and it is likely that some 
are enforced now, which are condemned by the most 
enlightened opinion of the time, or which at all events 
pass the limit of interference as many consciences 
would draw it. Manifestly, therefore, nothing but 



1 72 COLLECTED LEGAL PAPERS 

confusion of thought can result from assuming that 
the rights of man in a moral sense are equally rights 
in the sense of the Constitution and the law. No 
doubt simple and extreme cases can be put of imagin- 
able laws which the statute-making power would not 
dare to enact, even in the absence of written consti- 
tutional prohibitions, because the community would 
rise in rebellion and fight; and this gives some plaus- 
ibility to the proposition that the law, if not a part 
of morality, is limited by it. But this limit of power 
is not coextensive with any system of morals. For 
the most part it falls far within the lines of any such 
system, and in some cases may extend beyond them, 
for reasons drawn from the habits of a particular 
people at a particular time. I once heard the late 
Professor Agassiz say that a German population 
would rise if you added two cents to the price of a 
glass of beer. A statute in such a case would be 
empty words, not because it was wrong, but because 
it could not be enforced. No one will deny that 
wrong statutes can be and are enforced, and we 
should not all agree as to which were the wrong ones. 
The confusion with which I am dealing besets con- 
fessedly legal conceptions. Take the fundamental 
question, What constitutes the law? You will find 
some text writers telling you that it is something 
different from what is decided by the courts of 
Massachusetts or England, that it is a system of 
reason, that it is a deduction from principles of 
ethics or admitted axioms or what not, which may 
or may not coincide with the decisions. But if we 



EXECUTORS 149 

how hard the early way of thinking died that as late 

as 1792, the King's Bench were divided on the ques- 
tion whether a sheriff could apply the goods of a 

testator in the hands of his executor in execution of 
a judgment against the executor in his own right, if 
the sheriff was notified after seizure that the goods 
were effects of the testator. As might have been 

expected the judgment was that the sheriff had not 
the right, but Mr. Justice Buller delivered a power- 
ful dissent. 21 A little earlier the same court decided 
that a sale of the testator's goods in execution of 
such a judgment passed the title, and Lord Mans- 
field laid it down as clear that an executor might 
alien such goods to one who knew them to be assets 
for the payment of debts, and that he might alien 
them for a debt of his own. He added, "If the 
debts had been paid the goods are the property of 
the executor." 22 

Another singular thing is the form of an execu- 
tor's right of retainer. "If an executor has as much 
goods in his hands as his own debt amounts to, the 
property of those goods is altered and rests in him- 
self; that is ? he has them as his own proper goods 
in satisfaction of his debt, and not as executor." 2S 
This proposition is qualified by Wentworth, so far 
as to require an election where the goods are more 
than the debt. 24 But the right is clear, and if not 

21 Fair ts. Newman, 4 T.R, 621. 

** Whale v. Booth, 4 Doug. 36, 46. See i Wms. Exors. (pth ed) 
561, note. 

2S Woodward t. Lord Darcy, Plowdm, 184, 185. 
** Executors (i4th ed.), 77 198* *99* 



i S o COLLECTED LEGAL PAPERS 

exercised by the executor in his lifetime passes to his 
executor. 25 So when an executor or administrator 
pays a debt of the deceased with his own money he 
may appropriate chattels to the value of the debt. 26 
A right to take money would not have seemed 
strange, but this right to take chattels at a valuation 
in pais without judgment is singular. It may be 
a survival of archaic modes of satisfaction when 
money was scarce and valuations in the country 
common. 27 But it may be a relic of more extensive 
title. 

The last fact to be considered is the late date 
at which equity fully carried out the notion that 
executors hold the assets in trust. In 1750, in a 
case where one Richard Watkins had died, leaving 
his property to his nephew and niece, Lord Hard- 
wicke, speaking of a subsequently deceased nephew, 
William Watkins, said that he "had no right to any 
specific part of the personal estate of Richard what- 
ever; only a right to have that personal estate ac- 
counted for, and debts and legacies paid out of it, 
and so much as should be his share on the whole 
account paid to him; which is only a debt, or in the 
nature of a chose in action due to the estate of Wil- 

25 Hopton v. Dryden, Free. Ch. 179. Wentw. Exors. (i4th ed.) 
77, note, citing n Vin. Abr. 261, 263; Croft v. Pyke, 3 P. Wms. 
I79 183; Burdet v. Fix, 2 Brownl. 50. 

26 Dyer, 20; Elliott v. Kemp. 7 M. & W. 306, 313. 

2T See, e.g., the application of the trusteed wool to the judgment in 
I Rot. Parl. 1 08. Assignment of dower de la pluis beale, Litt. 49. 
Delivery of debtor's chattels by sheriff, St. Westm. n. Ch. 18. Kearns 
v. Cunniff, 138 Mass. 434, 436. 



EXECUTORS 151 

Ham."* 8 In M*Leod v. Drummond 28 Lord Eldon 
says that Lord Hardwicke "frequently considered it 
as doubtful, whether even in the excepted cases any 
one except a creditor, or a specific legatee, could 
follow the assets in equity. On the same page, 
Hill v. Simpson, 7 Ves. 152 (1802), is said to have 
been the first case which gave that right to a general 
pecuniary legatee, 30 Hill v. Simpson lays it down 
that executors in equity are mere trustees for the 
performance of the will/ 1 but it adds that in many 
respects and for many purposes third persons are 
entitled to consider them absolute owners. Toward 
the end of the last century their fiduciary position 
began to be insisted on more than had been the case, 
and the common-law decisions which have been cited 
helped this tendency of the Chancery. 33 

The final step was taken in IVFLeod v. Dram- 
mond, 88 when Lord Eldon established the rights of 
residuary legatees. "It is said in Farr v. Newman 
that the residuary legatee is to take the money, 
when made up: but I say, he has in a sense a lien 
upon the fund, as it is; and may come here for the 
specific fund." 3 * 

2 Thome v, Watkins, 2 Ves. Sen, 35, 36. 

2 I7 yes, 152, 169 (1810). 

* See also M'Leod v. Drammond, 14 Ves. 353 3S4- 

81 P. 166. Note tbe recurrence with a difference to their original 
position in the early Prankish law. I Law Quart. Rev. 164. 

a* See also Scott v. Tyler, 2 Dickens, 712, 725, 7*6. 

33 I7 Ves. 152, 169. 

54 See Marvel v. Babbitt, 143 Mass. 226; Fierce v. Gould, 143 Mass. 
2S4> 235; Mechanics' Savings Bank v. Waite, 150 Mass. 234, 235. 
I made the decree appealed from in Foster v. Bailer, 157 Mass. 160, 



152 COLLECTED LEGAL PAPERS 

162. The particular form which it took, allowing the defendant, the 
administrator of an administrator, to retain one share of stock and a 
savings-bank book as security for what might be found due to his 
intestate on the settlement of his account, and directing him to hand 
over the rest of the assets, was consented to, in case the defendant 
had a right to retain anything. I made the decree on the assumption 
that the change in the position of executor and administrator which 
I am considering left their rights undisturbed. Of course if the liability 
were only to account for a balance, the executor of an executor would 
not be bound to hand over anything more, and could not be compelled 
to pay anything until the balance was settled. His duty, when estab- 
lished, would not be to deliver specific property, but to pay a sum 
of money. I do not know what evidence can be found on this point. 
It is fair to mention that the plea offered in 30 Ed. I. 240, by executor 
of executors, was that, "We held none of the goods of the deceased 
on the day when this bill was delivered." But that may be no more 
than a general form. "Bonz" probably only meant property. 



THE BAR AS A PROFESSION* 

THE main thoughts of the fine paper on "The 
Bar as a Profession/ 7 by the Lord Chief Justice of 
England, in the Companion of February 13, 1896, 
are as true for America as for England; but possibly 
a few local variations on his theme may have their 
use. It is not likely here that anybody will be 
prejudiced against business or will take formal views 
of the dignity of callings such as a hundred years ago 
put the ministry first, law and medicine next, and 
below them all other pursuits. The real beliefs of 
the world to-day are commercial, and money and the 
means of making it are in no danger of being under- 
valued. 

I should say that one of the good things about 
the law is that it does not pursue money directly. 
When you sell goods the price which you get and 
your own interests are what you think about in the 
affair. When you try a case you think about the 
ways to win it and the interests of your client. In 
the long run this affects one's whole habit of mind, 
as anyone will notice if he talks much with men. 

In the twenty-five years that I have known English 
lawyers it has seemed to me that a scholastic type of 
man has more chance of success in England than 

* Reprinted from the Youths Companion for 
153 



j S 4 COLLECTED LEGAL PAPERS 

here, where the men at the top are usually hard 
fighters. At all events, scholarliness as a social ac- 
complishment is more important there than here, and 
this would lead me to lay somewhat less weight upon 
a university training than is done by the Lord Chief 
Justice. 

I will not go so far as a jesting friend of mine once 
did and say that the main use of a university educa- 
tion is to learn the humbug of it. I think it very 
useful and very important to a man as a man. But 
In this country I do not think it quite so important 
to a lawyer as a lawyer. 

A certain amount of education a man must have 
who constantly is using books. It will save him 
trouble if he understands an occasional scrap of Latin 
when he comes across it. But a man may sweep 
juries before him, command the attention of judges, 
counsel sagely in great affairs, or be a leader in any 
senate of the country with nothing of the scholarly 
about him. 

I say this not to make light of the good of going 
to college, but by way of encouragement to those 
who doubt whether their inability to go there does 
not take away hope of success in the law. I have 
had letters from young men beset with the doubt, 
and always have told them that it is no ground for 
despair. 

If a man misses a university education it may be 
made up to him in part by the way we study law in 
this country; for that also is different from the 
English way. I think all the lawyers I know here- 



THE BAR AS A PROFESSION 155 

abouts would agree that the place for a young man 
to study law is a law school, not a lawyer's office. 

We have a great many law schools In the United 
States in which a great many able and more or less 
distinguished men are teachers. I will mention that 
at Cambridge, not by way of invidious comparison, 
but as that which I know best. If a young man can 
afford to study there for two, or even three years, he 
will not regret a month of it when he comes to 
practice. 

After the law school spend six months in a good 
office, to see how things are done, and also perhaps 
to get a little of the usual law student's conceit 
rubbed off, and then begin. Practice, in Massachu- 
setts at least, is very easily understood. 

What needs time is not to learn the routine of 
clerk's offices or what a writ looks like, but to master 
profoundly and in detail the great body of the law. 
This is done far better in a law school in the midst 
of a catching enthusiasm than it can be in the listless 
solitude of an office, and the companionship and intel- 
lectual excitement which are found in the school take 
the place to many of the experience which they 
missed at an earlier stage. 

In a law school the lines of study are marked out, 
of course, and the student will not be likely to find 
much time for the Roman law. If he studies that, 
it will be in his months of waiting for clients. But 
in spite of the very great authority by which the 
study of it is recommended, I never have been able 
to believe that it has the value so often supposed. 



i S 6 COLLECTED LEGAL PAPERS 

A system of law at any time is the resultant of 
present needs and present notions of what is wise 
and right on the one hand, and, on the other, of 
rules handed down from earlier states of society and 
embodying needs and notions which more or less have 
passed away. 

To get to the bottom of any system, therefore, a 
good deal of history has to be studied, and this is 
true of the law under which we live now. But our 
law has reached broader and more profound general- 
izations than the Roman law, and at the same time 
far surpasses It in the detail with which it has been 
worked out. 

One who is master of our own will master any 
civilized body of law with ease. But while he is 
engaged in mastering one, I doubt the wisdom of 
adding to his difficulties by the attempt to learn an- 
other system which is even more in need than ours 
of historical explanation at every step, a large part 
of which is obsolete, and a part of which is hard to 
understand even in the best modern books. I cannot 
help suspecting that the advantages attributed to 
his study of it by the Lord Chief Justice were 
due to Sir Henry Maine more than to the Roman 
law. 

The main roots of our law are Frankish, not 
Roman, and many ideas which formerly were sup- 
posed, and in the common books still are supposed, 
to have come from Rome are now traced to the Lex 
SaMca and the folk-law which left its mark in the 
Germama of Tacitus. The last will is almost the 



THE PATH OF THE LAW 173 

take the view of our friend the bad man we shall find 
that he does not care two straws for the axioms or 
deductions, but that he does want to know what the 
Massachusetts or English courts are likely to do in 
fact. I am much of his mind. The prophecies of 
what the courts will do in fact, and nothing more 
pretentious, are what I mean by the law. 

Take again a notion which as popularly under- 
stood is the widest conception which the law con- 
tains the notion of legal duty, to which already 
I have referred. We fill the word with all the con- 
tent which we draw from morals. But what does 
it mean to a bad man? Mainly, and in the first 
place, a prophecy that if he does certain things he 
will be subjected to disagreeable consequences by 
way of imprisonment or compulsory payment of 
money. But from his point of view, what is the 
difference between being fined and being taxed a 
certain sum for doing a certain thing? That his 
point of view is the test of legal principles is shown 
by the many discussions which have arisen in the 
courts on the very quesetion whether a given statu- 
tory liability is a penalty or a tax. On the answer 
to this question depends the decision whether conduct 
is legally wrong or right, and also whether a man 
is under compulsion or free. Leaving the criminal 
law on one side, what is the difference between the 
liability under the mill acts or statutes authorizing 
a taking by eminent domain and the liability for 
what we call a wrongful conversion of property 
where restoration is out of the question. In both 



174 COLLECTED LEGAL PAPERS 

cases the party taking another man's property has 
to pay Its fair value as assessed by a jury, and no 
more. What significance is there in calling one 
taking right and another wrong from the point of 
view of the law? It does not matter, so far as the 
given consequence, the compulsory payment, is con- 
cerned, whether the act to which it is attached is 
described in terms of praise or in terms of blame, or 
whether the law purports to prohibit it or to allow 
it. If it matters at all, still speaking from the bad 
man's point of view, it must be because in one case 
and not in the other some further disadvantages, or 
at least some further consequences, are attached to 
the act by the law. The only other disadvantages 
thus attached to it which I ever have been able to 
think of are to be found in two somewhat insignifi- 
cant legal doctrines, both of which might be abolished 
without disturbance. One is, that a contract to do 
a prohibited act is unlawful, and the other, that, if 
one of two or more joint wrongdoers has to pay 
all the damages, he cannot recover contribution from 
his fellows. And that I believe is all. You see how 
the vague circumference of the notion of duty shrinks 
and at the same time grows more precise when we 
wash it with cynical acid and expel everything except 
the object of our study, the operations of the law. 

Nowhere is the confusion between legal and moral 
ideas more manifest than in the law of contract. 
Among other things, here again the so called primary 
rights and duties are invested with a mystic signifi- 
cance beyond what can be assigned and explained. 



THE PATH OF THE LAW 175 

The duty to keep a contract at common law means a 
prediction that you must pay damages if you do not 
keep it and nothing else. If you commit a tort, 
you are liable to pay a compensatory sum. If you 
commit a contract, you are liable to pay a compensa- 
tory sum unless the promised event comes to pass, and 
that is all the difference. But such a mode of looking 
at the matter stinks in the nostrils of those who think 
it advantageous to get as much ethics into the law 
as they can. It was good enough for Lord Coke, 
however, and here, as in many other cases, I am 
content to abide with him. In Bromage v. Genning? 
a prohibition was sought in the King's Bench against 
a suit in the marches of Wales for the specific per- 
formance of a covenant to grant a lease, and Coke 
said that it would subvert the intention of the cove- 
nantor, since he intends it to be at his election either 
to lose the damages or to make the lease. Sergeant 
Harris for the plaintiff confessed that he moved 
the matter against his conscience, and a prohibition 
was granted. This goes further than we should go 
now, but it shows what I venture to say has been 
the common law point of view from the beginning, 
although Mr. Haniman, in his very able little book 
upon Contracts has been inMed, as I humbly think, 
to a different conclusion. 

I have spoken only of the common law, because 
there are some cases in which a logical justification 
can be found for speaking of avfl liabilities as Im- 
posing duties in an ineligible sense. These are 

iRoll. Rep. 368. 



1 7 6 COLLECTED LEGAL PAPERS 

the relatively few in which equity will grant an 
injunction, and will enforce it by putting the defend- 
ant in prison or otherwise punishing him unless he 
complies with the order of the court. But I hardly 
think it advisable to shape general theory from the 
exception, and I think it would be better to cease 
troubling ourselves about primary rights and sanc- 
tions altogether, than to describe our prophecies con- 
cerning the liabilities commonly imposed by the law 
in those inappropriate terms. 

I mentioned, as other examples of the use by the 
law of words drawn from morals, malice, intent, and 
negligence. It is enough to take malice as it is used 
in the law of civil liability for wrongs what we 
lawyers call the law of torts to show that it means 
something different in law from what it means in 
morals, and also to show how the difference has been 
obscured by giving to principles which have little or 
nothing to do with each other the same name. Three 
hundred years ago a parson preached a sermon and 
told a story out of Fox's Book of Martyrs of a man 
who had assisted at the torture of one of the saints, 
and afterward died, suffering compensatory inward 
torment. It happened that Fox was wrong. The 
man was alive and chanced to hear the sermon, and 
thereupon he sued the parson. Chief Justice Wray 
instructed the jury that the defendant was not liable, 
because the story was told innocently, without malice. 
He took malice in the moral sense, as importing a 
malevolent motive. But nowadays no one doubts 
that a man may be liable, without any malevolent 



THE PATH OF THE LAW 177 

motive at all, for false statements manifestly cal- 
culated to inflict temporal damage. In stating the 
case in pleading, we still should call the defendant's 
conduct malicious; but, in my opinion at least, the 
word means nothing about motives, or even about 
the defendant's attitude toward the future, but only 
signifies that the tendency of his conduct under the 
known circumstances was very plainly to cause the 
plaintiff temporal harm. 2 

In the law of contract the use of moral phrase* 
ology has led to equal confusion, as I have shown 
in part already, but only in part. Morals deal with 
the actual internal state of the individual's mind, 
what he actually intends. From the time of the 
Romans down to now, this mode of dealing has 
affected the language of the law as to contract, and 
the language used has reacted upon the thought. We 
talk about a contract as a meeting of the minds 
of the parties, and thence it is inferred in various 
cases that there is no contract because their minds 
have not met; that is, because they have intended 
different things or because one party has not known 
of the assent of the other. Yet nothing is more 
certain than that parties may be bound by a contract 
to things which neither of them intended, and when 
one does not know of the other's assent. Suppose 
a contract is executed in due form and in writing 
to deliver a lecture, mentioning no time. One of 
the parties thinks that the promise will be construed 
to mean at once, within a week. The other thinks 

2 See Hanson t*. Globe Newspaper Co., 159 Mass. 293, 302. 



1 78 COLLECTED LEGAL PAPERS 

that it means when he is ready. The court says 
that it means within a reasonable time. The parties 
are bound by the contract as it is interpreted by 
the court, yet neither of them meant what the court 
declares that they have said. In my opinion no one 
will understand the true theory of contract or be 
able even to discuss some fundamental questions 
intelligently until he has understood that all con- 
tracts are formal, that the making of a contract 
depends not on the agreement of two minds in one 
intention, but on the agreement of two sets of ex- 
ternal signs not on the parties 3 having meant the 
same thing but on their having said the same thing. 
Furthermore, as the signs may be addressed to one 
sense or another to sight or to hearing on the 
nature of the sign will depend the moment when the 
contract is made. If the sign is tangible, for in- 
stance, a letter, the contract is made when the letter 
of acceptance is delivered. If it is necessary that 
the minds of the parties meet, there will be no con- 
tract until the acceptance can be read none, for 
example, if the acceptance be snatched from the 
hand of the offerer by a third person. 

This is not the time to work out a theory in de- 
tail, or to answer many obvious doubts and questions 
which are suggested by these general views. I know 
of none which are not easy to answer, but what I 
am trying to do now is only by a series of hints to 
throw some light on the narrow path of legal doc- 
trine, and upon two pitfalls which, as it seems to 
me, lie perilously near to it. Of the first of these 



THE PATH OF THE LAW 179 

I have said enough. I hope that my illustrations 
have shown the danger, both to speculation and to 
practice, of confounding morality with law, and the 
trap which legal language lays for us on that side 
of our way. For my own part, I often doubt 
whether it would not be a gain if every word of moral 
significance could be banished from the law al- 
together, and other words adopted which should con* 
vey legal ideas uncolored by anything outside the 
law. We should lose the fossil records of a good 
deal of history and the majesty got from ethical 
associations, but by ridding ourselves of an unneces- 
sary confusion we should gain very much in the 
clearness of our thought. 

So much for the limits of the law. The next thing 
which I wish to consider is what are the forces which 
determine its content and its growth. You may as- 
sume, with Hobbes and Bentham and Austin, that 
all law emanates from the sovereign, even when the 
first human beings to enunciate it are the judges, 
or you may think that law is the voice of the Zeit- 
geist, or what you like. It is all one to my present 
purpose. Even if every decision required the sanc- 
tion of an emperor with despotic power and a whim- 
sical turn of mind, we should be interested none the 
less, still with a view to prediction, in discovering some 
order, some rational explanation, and some principle 
of growth for the rules which he laid down. In every 
system there are such explanations and principles to 
be found. It is with regard to them that a second 
fallacy comes in, which I think it important to 
expose. 



i8o COLLECTED LEGAL PAPERS 

The fallacy to which I refer is the notion that 
the only force at work in the development of the 
law is logic. In the broadest sense, indeed, that 
notion would be true. The postulate on which we 
think about the universe is that there is a fixed 
quantitative relation between every phenomenon and 
its antecedents and consequents. If there is such 
a thing as a phenomenon without these fixed quanti- 
tative relations, it is a miracle. It is outside the law 
of cause and effect, and as such transcends our power 
of thought, or at least is something to or from which 
we cannot reason. The condition of our thinking 
about the universe is that it is capable of being 
thought about rationally, or, in other words, that 
every part of it is effect and cause in the same sense 
in which those parts are with which we are most 
familiar. So in the broadest sense it is true that 
the law is a logical development, like everything else. 
The danger of which I speak is not the admission 
that the principles governing other phenomena also 
govern the law, but the notion that a given system, 
ours, for instance, can be worked out like mathe- 
matics from some general axioms of conduct. This 
is the natural error of the schools, but it is not con- 
fined to them. I once heard a very eminent judge 
say that he never let a decision go until he was 
absolutely sure that it was right. So judicial dis- 
sent often is blamed, as if it meant simply that one 
side or the other were not doing their sums right, 
and, if they would take more trouble, agreement 
inevitably would come. 



THE PATH OF THE LAW 181 

This mode of thinking is entirely natural. The 
training of lawyers is a training in logic. The proc- 
esses of analogy, discrimination, and deduction are 
those in which they are most at home. The lan- 
guage of judicial decision is mainly the language of 
logic. And the logical method and form flatter that 
longing for certainty and for repose which is in 
every human mind. But certainty generally is illu- 
sion, and repose is not the destiny of man. Behind 
the logical form lies a judgment as to the relative 
worth and importance of competing legislative 
grounds, often an inarticulate and unconscious judg- 
ment, it is true, and yet the very root and nerve of 
the whole proceeding. You can give any conclusion 
a logical form. You always can imply a condition in 
a contract. But why do you imply it? It is be- 
cause of some belief as to the practice of the commu- 
nity or of a class, or because of some opinion as to 
policy, or, in short, because of some attitude of yours 
upon a matter not capable of exact quantitative 
measurement, and therefore not capable of founding 
exact logical conclusions. Such matters really are 
battle grounds where the means do not exist for 
determinations that shall be good for all time, and 
where the decision can do no more than embody 
the preference of a given body in a given time and 
place. We do not realize how large a part of our 
law is open to reconsideration upon a slight change 
in the habit of the public mind. No concrete propo- 
sition is self evident, no matter how ready we may 
be to accept it, not even Mr. Herbert Spencer's 



182 COLLECTED LEGAL PAPERS 

"Every man has a right to do what he wills, pro- 
vided he interferes not with a like right on the part 
of his neighbors." 

Why is a false and injurious statement privileged, 
if it is made honestly in giving information about a 
servant. It is because it has been thought more 
important that information should be given freely, 
than that a man should be protected from what under 
other circumstances would be an actionable wrong. 
Why is a man at liberty to set up a business which 
he knows will ruin his neighbor? It is because the 
public good is supposed to be best subserved by free 
competition. Obviously such judgments of relative 
importance may vary in different times and places. 
Why does a judge instruct a jury that an employer 
is not liable to an employee for an injury received 
in the course of his employment unless he is negli- 
gent, and why do the jury generally find for the 
plaintiff if the case is allowed to go to them? It is 
because the traditional policy of our law is to confine 
liability to cases where a prudent man might have 
foreseen the injury, or at least the danger, while the 
inclination of a very large part of the community 
is to make certain classes of persons insure the safety 
of those with whom they deal. Since the last words 
were written, I have seen the requirement of such 
insurance put forth as part of the programme of one 
of the best known labor organizations. There is 
a concealed, half conscious battle on the question 
of legislative policy, and if any one thinks that it 
can be settled deductively, or once for all, I only 



THE PATH OF THE LAW 183 

can say that I think he is theoretically wrong ; and 
that I am certain that his conclusion will not be ac- 
cepted in practice semper ubique et ab omnibus. 

Indeed, I tMnk that even now our theory upon 
this matter is open to reconsideration, although I 
am not prepared to say how I should decide if a 
reconsideration were proposed. Our law of torts 
comes from the old days of isolated, ungeneralized 
wrongs, assaults, slanders, and the like, where the 
damages might be taken to lie where they fell by 
legal judgment. But the torts with which our courts 
are kept busy to-day are mainly the incidents of 
certain well known businesses. They are injuries 
to person or property by railroads, factories, and the 
like. The liability for them is estimated ? and sooner 
or later goes into the price paid by the public. The 
public really pays the damages, and the question of 
liability, if pressed far enough, is really the question 
how far it is desirable that the public should insure 
the safety of those whose work it uses. It might 
be said that in such cases the chance of a jury find- 
ing for the defendant is merely a chance, once in a 
while rather arbitrarily interrupting the regular 
course of recovery, most likely in the case of an un- 
usually conscientious plaintiff, and therefore better 
done away with. On the other hand, the economic 
value even of a life to the community can be esti- 
mated, and no recovery, it may be said, ought to 
go beyond that amount. It is conceivable that some 
day in certain cases we may find ourselves imitating, 



184 COLLECTED LEGAL PAPERS 

on a higher plane, the tariff for life and limb which 
we see in the Leges Barbarorum. 

I think that the judges themselves have failed 
adequately to recognize their duty of weighing con- 
siderations of social advantage. The duty is inevit- 
able, and the result of the often proclaimed judicial 
aversion to deal with such considerations is simply to 
leave the very ground and foundation of judgments 
inarticulate, and often unconscious, as I have said. 
When socialism first began to be talked about, the 
comfortable classes of the community were a good 
deal frightened. I suspect that this fear has influ- 
enced judicial action both here and in England, yet 
it is certain that it is not a conscious factor in the 
decisions to which I refer. I think that something 
similar has led people who no longer hope to control 
the legislatures to look to the courts as expounders 
of the Constitutions, and that in some courts new 
principles have been discovered outside the bodies 
of those instruments, which may be generalized into 
acceptance of the economic doctrines which prevailed 
about fifty years ago, and a wholesale prohibition of 
what a tribunal of lawyers does not think about 
right. I cannot but believe that if the training of 
lawyers led them habitually to consider more defi- 
nitely and explicitly the social advantage on which 
the rule they lay down must be justified, they some- 
times would hesitate where now they are confident, 
and see that really they were taking sides upon de- 
batable and often burning questions. 

So much for the fallacy of logical form. Now let 



THE PATH OF THE LAW 185 

us consider the present condition of the law as a 
subject for study, and the ideal toward which it tends. 
We still are far from the point of view which I desire 
to see reached. No one has reached it or can reach 
it as yet. We are only at the beginning of a phil- 
osophical reaction, and of a reconsideration of the 
worth of doctrines which for the most part still are 
taken for granted without any deliberate, conscious, 
and systematic questioning of their grounds. The 
development of our law has gone on for nearly a 
thousand years, like the development of a plant, 
each generation taking the inevitable next step, mind, 
like matter, simply obeying a law of spontaneous 
growth. It is perfectly natural and right that it 
should have been so. Imitation is a necessity of 
human nature, as has been illustrated by a remark- 
able French writer, M. Tarde, in an admirable book, 
Les Lois de limitation. Most of the things we do, we 
do for no better reason than that our fathers have 
done them or that our neighbors do them, and the 
same is true of a larger part than we suspect of what 
we think. The reason is a good one, because our 
short life gives us no time for a better, but it is not 
the best. It does not follow, because we all are 
compelled to take on faith at second hand most of 
the rules on which we base our action and our 
thought, that each of us may not try to set some 
corner of his world in the order of reason, or that 
all of us collectively should not aspire to carry reason 
as far as it will go throughout the whole domain. In 
regard to the law, it is true, no doubt, that an evo- 



z86 COLLECTED LEGAL PAPERS 

lutionist will hesitate to affirm universal validity 
for his social ideals, or for the principles which he 
thinks should be embodied in legislation. He is con- 
tent if he can prove them best for here and now. He 
may be ready to admit that he knows nothing about 
an absolute best in the cosmos, and even that he 
knows next to nothing about a permanent best for 
men. Still it is true that a body of law is more 
rational and more civilized when every rule it con- 
tains is referred articulately and definitely to an end 
which it subserves, and when the grounds for desir- 
ing that end are stated or are ready to be stated in 
words. 

At present, in very many cases, if we want to know 
why a rule of law has taken its particular shape, 
and more or less if we want to know why it exists 
at all, we go to tradition. We follow it into the 
Year Books, and perhaps beyond them to the cus- 
toms of the Salian Franks, and somewhere in the 
past, in the German forests, in the needs of Norman 
kings, in the assumptions of a dominant class, in 
the absence of generalized ideas, we find out the 
practical motive for what now best is justified by 
the mere fact of its acceptance and that men are 
accustomed to it. The rational study of law is still 
to a large extent the study of history. History must 
be a part of the study, because without it we cannot 
know the precise scope of rules which it is our busi- 
ness to know. It is a part of the rational study, 
because it is the first step toward an enlightened 
scepticism, that is, towards a deliberate reconsidera- 



THE PATH OF THE LAW 187 

tion of the worth of those rules. When you get the 
dragon out of his cave on to the plain and in the 
daylight, you can count his teeth and daws, and 
see just what is his strength. But to get him out 
is only the first step. The next is either to Mil him, 
or to tame him and make him a usef qj animal For 
the rational study of the law the black-letter man 
may be the man of the present, but the man of the 
future is the man of statistics and the master of 
economics. It is revolting to have no better reason 
for a rule of law than that so it was laid down in 
the time of Henry IV. It is still more revolting 
if the grounds upon which it was laid down have 
vanished long since, and the rule simply persists from 
blind imitation of the past. I am thinking of the 
technical rule as to trespass ab initio, as it is called, 
which I attempted to explain in a recent Massa- 
chusetts case. 3 

Let me take an illustration, which can be stated 
in a few words, to show how the social end which 
is aimed at by a rule of law is obscured and only 
partially attained in consequence of the fact that 
the rule owes its form to a gradual historical develop- 
ment, instead of being reshaped as a whole, with 
conscious articulate reference to the end in view. 
We think it desirable to prevent one man's property 
being misappropriated by another, and so we make 
larceny a crime. The evil is the same whether the 
misappropriation is made by a man into whose hands 
the owner has put the property, or by one who wrong- 

3 Commonwealth V. Rubin, 165 Mass. 453. 



188 COLLECTED LEGAL PAPERS 

fully takes it away. But primitive law in its weak- 
ness did not get much beyond an effort to prevent 
violence, and very naturally made a wrongful taking, 
a trespass, part of its definition of the crime. In 
modern times the judges enlarged the definition a 
little by holding that, if the wrong-doer gets posses- 
sion by a trick or device, the crime is committed. 
This really was giving up the requirement of a tres- 
pass, and it would have been more logical, as well as 
truer to the present object of the law, to abandon 
the requirement altogether. That, however, would 
have seemed too bold, and was left to statute. 
Statutes were passed making embezzlement a crime. 
But the force of tradition caused the crime of em- 
bezzlement to be regarded as so far distinct from 
larceny that to this day, in some jurisdictions at 
least, a slip corner is kept open for thieves to con- 
tend, if indicted for larceny, that they should have 
been indicted for embezzlement, and if indicted for 
embezzlement, that they should have been indicted 
for larceny, and to escape on that ground. 

Far more fundamental questions still await a bet- 
ter answer than that we do as our fathers have done. 
What have we better than a blind guess to show 
that the criminal law in its present form does more 
good than harm? I do not stop to refer to the effect 
which it has had in degrading prisoners and in plung- 
ing them further into crime, or to the question 
whether fine and imprisonment do not fall more 
heavily on a criminaFs wife and children than on 
himself. I have in mind more far-reaching ques- 



THE PATH OF THE LAW 189 

tions. Does punishment deter? Do we deal with 
criminals on proper principles? A modern school of 
Continental criminalists plumes itself on the formula, 
first suggested, it is said, by Gall, that we must con- 
sider the criminal rather than the crime. The 
formula does not carry us very far, but the inquiries 
which have been started look toward an answer of 
my questions based on science for the first time. If 
the typical criminal is a degenerate, bound to swindle 
or to murder by as deep seated an organic necessity 
as that which makes the rattlesnake bite, it is idle 
to talk of deterring him by the classical method of 
imprisonment. He must be got rid of; he cannot 
be improved, or frightened out of his structural re- 
action. If, on the other hand, crime, like normal 
human conduct, is mainly a matter of imitation, 
punishment fairly may be expected to help to keep 
it out of fashion. The study of criminals has been 
thought by some well known men of science to sus- 
tain the former hypothesis. The statistics of the 
relative increase of crime in crowded places like large 
cities, where example has the greatest chance to work, 
and in less populated parts, where the contagion 
spreads more slowly, have been used with great force 
in favor of the latter view. But there is weighty 
authority for the belief that, however this may be, 
"not the nature of the crime, but the dangerousness 
of the criminal, constitutes the only reasonable legal 
criterion to guide the inevitable social reaction against 
the criminal." * 

* Havelock EIKs, The Criminal, 41, citing Garofalo. See also Fern, 
Socwlogie Crmxnette, p&ssim. Compare Tarde* La PkUasopkie Ptnale. 



xgo COLLECTED LEGAL PAPERS 

The impediments to rational generalization, which 
I illustrated from the law of larceny, are shown in 
the other branches of the law, as well as in that of 
crime. Take the law of tort or civil liability for 
damages apart from contract and the like. Is there 
any general theory of such liability, or are the cases 
in which it exists simply to be enumerated, and to 
be explained each on its special ground, as is easy to 
believe from the fact that the right of action for 
certain well known classes of wrongs like trespass 
or slander has its special history for each class? I 
think that there is a general theory to be discovered, 
although resting in tendency rather than established 
and accepted. I think that the law regards the inflic- 
tion of temporal damage by a responsible person 
as actionable, if under the circumstances known to 
him the danger of his act is manifest according to 
common experience, or according to his own experi- 
ence if it is more than common, except in cases where 
upon special grounds of policy the law refuses to pro- 
tect the plaintiff or grants a privilege to the defend- 
ant. 5 I think that commonly malice, intent, and 
negligence mean only that the danger was manifest 
to a greater or less degree, under the circumstances 
known to the actor, although in some cases of privi- 
lege malice may mean an actual malevolent motive, 

5 An example of the law's refusing to protect the plaintiff is when 
he is interrupted by a stranger in the use of a valuable way, which 
he has travelled adversely for a week less than the period of prescrip- 
tion. A week later he will have gained a right, but now he is only 
a trespasser. Example of privilege I have given already. One of the 
best is competition in business. 



THE PATH OF THE LAW 191 

and such a motive may take away a permission know- 
ingly to inflict harm, which otherwise would be 
granted on this or that ground of dominant public 
good. But when I stated my view to a very emi- 
nent English judge the other day, he said: "You are 
discussing what the law ought to be; as the law is, 
you must show a right. A man is not liable for 
negligence unless he is subject to a duty." If our 
difference was more than a difference in words, or 
with regard to the proportion between the exceptions 
and the rule, then, in his opinion, liability for an 
act cannot be referred to the manifest tendency of 
the act to cause temporal damage in general as a 
sufficient explanation, but must be referred to the 
special nature of the damage, or must be derived 
from some special circumstances outside of the ten- 
dency of the act, for which no generalized explana- 
tion exists. I think that such a view is wrong, but 
it is familiar, and I dare say generally is accepted in 
England. 

Everywhere the basis of principle is tradition, to 
such an extent that we even are in danger of making 
the role of history more important than it is. The 
other day Professor Ames wrote a learned artide 
to show, among other things, that the common law 
did not recognize the defence of fraud in actions 
upon specialties, and the moral might seem to be 
that the personal character of that defence is due 
to its equitable origin. But if, as I have said, all 
contracts are formal, the difference is not merely 
historical, but theoretic, between defects of form 



192 COLLECTED LEGAL PAPERS 

which prevent a contract from being made, and mis- 
taken motives which manifestly could not be con- 
sidered in any system that we should call rational 
except against one who was privy to those motives. 
It is not confined to specialties, but is of universal 
application. I ought to add that I do not suppose 
that Mr. Ames would disagree with what I suggest. 

However, if we consider the law of contract, we 
find it full of history. The distinctions between 
debt, covenant, and assumpsit are merely historical. 
The classification of certain obligations to pay money, 
imposed by the law irrespective of any bargain as 
quasi contracts, is merely historical. The doctrine 
of consideration is merely historical. The effect 
given to a seal is to be explained by history alone. 
Consideration is a mere form. Is it a useful form? 
If so, why should it not be required in all contracts? 
A seal is a mere form, and is vanishing in the scroll 
and in enactments that a consideration must be given, 
seal or no seal. Why should any merely historical 
distinction be allowed to affect the rights and obli- 
gations of business men? 

Since I wrote this discourse I have come on a 
very good example of the way in which tradition 
not only overrides rational policy, but overrides it 
after first having been misunderstood and having 
been given a new and broader scope than it had 
when it had a meaning. It is the settled law of 
England that a material alteration of a written con- 
tract by a party avoids it as against him. The doc- 
trine is contrary to the general tendency of the law. 



THE PATH OF THE LAW 193 

We do not tell a jury that if a man ever has lied 
in one particular he is to be presumed to lie in all. 
Even if a man has tried to defraud, it seems no suffi- 
cient reason for preventing him from proving the 
truth. Objections of like nature in general go to the 
weight, not to the admissibility, of evidence. More- 
over, this rule is irrespective of fraud, and is not con- 
fined to evidence. It is not merely that you cannot 
use the writing, but that the contract is at an end. 
What does this mean? The existence of a written 
contract depends on the fact that the offerer and 
offeree have interchanged their written expressions, 
not on the continued existence of those expressions. 
But in the case of a bond, the primitive notion was 
different. The contract was inseparable from the 
parchment. If a stranger destroyed it, or tore off 
the seal, or altered it, the obligee could not recover, 
however free from fault, because the defendant's 
contract, that is, the actual tangible bond which he 
had sealed, could not be produced in the form in 
which it bound him. About a hundred years ago 
Lord Kenyon undertook to use his reason on this 
tradition, as he sometimes did to the detriment of 
the law, and, not understanding it, said he could 
see no reason why what was true of a bond should 
not be true of other contracts. His decision hap- 
pened to be right, as it concerned a promissory note, 
where again the common law regarded the contract 
as inseparable from the paper on which it was writ- 
ten, but the reasoning was general, and soon was 
extended to other written contracts, and various ab- 



194 COLLECTED LEGAL PAPERS 

surd and unreal grounds of policy were invented to 
account for the enlarged rule. 

I trust that no one will understand me to be speak- 
ing with disrespect of the law, because I criticise it 
so freely. I venerate the law, and especially our 
system of law, as one of the vastest products of 
the human mind. No one knows better than I do 
the countless number of great intellects that have 
spent themselves in making some addition or im- 
provement, the greatest of which is trifling when com- 
pared with the mighty whole. It has the final title 
to respect that it exists, that it is not a Hegelian 
dream, but a part of the lives of men. But one may 
criticise even what one reveres. Law is the business 
to which my life is devoted, and I should show less 
than devotion if I did not do what in me lies to im- 
prove it, and, when I perceive what seems to me the 
ideal of its future, if I hesitated to point it out and 
to press toward it with all my heart. 

Perhaps I have said enough to show the part which 
the study of history necessarily plays in the intelli- 
gent study of the law as it is to-day. In the teach- 
ing of this school and at Cambridge it is in no danger 
of being undervalued. Mr. Bigelow here and Mr. 
Ames and Mr. Thayer there have made important 
contributions which will not be forgotten, and in 
England the recent history of early English law by 
Sir Frederick Pollock and Mr, Maitland has lent the 
subject an almost deceptive charm. We must be- 
ware of the pitfall of antiquarianism, and must re- 
member that for our purposes our only interest in 



THE PATH OF THE LAW 195 

the past is for the light it throws upon the present. 
I look forward to a time when the part played by 
history in the explanation of dogma shall be very 
small, and instead of ingenious research we shall 
spend our energy on a study of the ends sought to 
be attained and the reasons for desiring them. As 
a step toward that ideal it seems to me that every 
lawyer ought to seek an understanding of economics. 
The present divorce between the schools of political 
economy and law seems to me an evidence of how 
much progress in philosophical study still remains 
to be made. In the present state of political 
economy, indeed, we come again upon history on a 
larger scale, but there we are called on to consider 
and weigh the ends of legislation, the means of attain- 
ing them, and the cost. We learn that for every- 
thing we have we give up something else, and we are 
taught to set the advantage we gain against the other 
advantage we lose, and to know what we are doing 
when we elect. 

There is another study which sometimes is under- 
valued by the practical minded, for which I wish to 
say a good word, although I think a good deal of 
pretty poor stuff goes under that name. I mean the 
study of what is called jurisprudence. Jurisprudence, 
as I look at it, is simply law in its most generalized 
part. Every effort to reduce a case to a rule is an 
effort of jurisprudence, although the name as used 
in English is confined to the broadest rules and mmt 
fundamental conceptions. One mark of a great law- 
yer is that he sees the application of the broadest 



196 COLLECTED LEGAL PAPERS 

rules. There is a story of a Vermont justice of the 
peace before whom a suit was brought by one farmer 
against another for breaking a churn. The justice 
took time to consider, and then said that he had 
looked through the statutes and could find nothing 
about churns, and gave judgment for the defendant. 
The same state of mind is shown in all our common 
digests and text-books. Applications of rudimentary 
rules of contract or tort are tucked away under the 
head of Railroads or Telegraphs or go to swell 
treatises on historical subdivisions, such as Shipping 
or Equity, or are gathered under an arbitrary title 
which is thought likely to appeal to the practical 
mind, such as Mercantile Law. If a man goes into 
law it pays to be a master of it, and to be a master 
of it means to look straight through all the dramatic 
incidents and to discern the true basis for prophecy. 
Therefore, it is well to have an accurate notion of 
what you mean by law, by a right, by a duty, by 
malice, intent, and negligence, by ownership, by pos- 
session, and so forth, I have in my mind cases in 
which the highest courts seem to me to have floun- 
dered because they had no clear ideas on some of 
these themes. I have illustrated their importance 
already. If a further illustration is wished, it may 
be found by reading the Appendix to Sir James 
Stephen's Criminal Law on the subject of possession, 
and then turning to Pollock and Wright's enlight- 
ened book. Sir James Stephen is not the only writer 
whose attempts to analyze legal ideas have been con- 
fused by striving for a useless quintessence of all sys- 



THE PATH OF THE LAW 197 

terns, Instead of an accurate anatomy of one. The 
trouble with Austin was that he did not know enough 
English law. But still it is a practical advantage to 
master Austin, and his predecessors, Hobbes and 
Bentham, and his worthy successors, Holland and 
Pollock. Sir Frederick Pollock's recent little book 
is touched with the felicity which marks all his works, 
and is wholly free from the perverting influence of 
Roman models. 

The advice of the elders to young men is very 
apt to be as unreal as a list of the hundred best 
books. At least in my day I had my share of such 
counsels, and high among the unrealities I place the 
recommendation to study the Roman law. I assume 
that such advice means more than collecting a few 
Latin maxims with which to ornament the discourse 

the purpose for which Lord Coke recommended 

Bracton. If that is all that is wanted, the title De 
Regulis Juris Antiqui can be read in an hour. I as- 
sume that, if it is well to study the Roman Law, it is 
well to study it as a working system. That means 
mastering a set of technicalities more difficult and 
less understood than our own, and studying another 
course of history by which even more than our own 
the Roman law must be explained. If any one 
doubts me, let Mm read Keller's Der Romische 
Civil Process und die Actionen, a treatise on the 
praetor's edict, Muirhead's most interesting His- 
torical Introduction to the Private Law of Rome, 
and, to give him the best chance, Sohm's admirable 
Institutes. No. The way to gain a liberal view of 



198 COLLECTED LEGAL PAPERS 

your subject is not to read something else, but to 
get to the bottom of the subject itself. The means 
of doing that are, in the first place, to follow the 
existing body of dogma into its highest generaliza- 
tions by the help of jurisprudence; next, to discover 
from history how it has come to be what it is; and, 
finally, so far as you can, to consider the ends 
which the several rules seek to accomplish, the rea- 
sons why those ends are desired, what is given up to 
gain them, and whether they are worth the price. 

We have too little theory in the law rather than 
too much, especially on this final branch of study. 
When I was speaking of history, I mentioned larceny 
as an example to show how the law suffered from not 
having embodied in a dear form a rule which will 
accomplish its manifest purpose. In that case the 
trouble was due to the survival of forms coming 
from a time when a more limited purpose was enter- 
tained. Let me now give an example to show the 
practical importance, for the decision of actual cases, 
of understanding the reasons of the law, by taking 
an example from rules which, so far as I know, never 
have been explained or theorized about in any ade- 
quate way. I refer to statutes of limitation and the 
law of prescription. The end of such rules is obvi- 
ous, but what is the justification for depriving a man 
of his rights, a pure evil as far as it goes, in conse- 
quence of the lapse of time? Sometimes the loss 
of evidence is referred to, but that is a secondary 
matter. Sometimes the desirability of peace, but 
why is peace more desirable after twenty years than 



THE PATH OF THE LAW 199 

before? It is Increasingly likely to come without 
the aid of legislation. Sometimes it is said that, if 
a man neglects to enforce his rights, he cannot com- 
plain if, after a while, the law follows his example. 
Now if this is all that can be said about it, you 
probably will decide a case I am going to put, for 
the plaintiff; if you take the view which I shall sug- 
gest, you possibly will decide it for the defendant. 
A man is sued for trespass upon land, and justifies 
under a right of way. He proves that he has used 
the way openly and adversely for twenty years, but 
it turns out that the plaintiff had granted a license 
to a person whom he reasonably supposed to be the 
defendant's agent, although not so in fact, and there- 
fore had assumed that the use of the way was per- 
missive, in which case no right would be gained. 
Has the defendant gained a right or not? If his 
gaining it stands on the fault and neglect of the 
landowner in the ordinary sense, as seems commonly 
to be supposed, there has been no such neglect, and 
the right of way has not been acquired. But if I 
were the defendant's counsel, I should suggest that 
the foundation of the acquisition of rights by lapse 
of time is to be looked for in the position of the per- 
son who gains them, not in that of the loser. Sir 
Henry Maine has made it fashionable to connect the 
archaic notion of property with prescription. But 
the connection is further back than the first recorded 
Mstory. It is in the nature of man's mind. A thing 
which you have enjoyed and used as your own for a 
long time, whether property or an opinion, takes 



200 COLLECTED LEGAL PAPERS 

root In your being and cannot be torn away without 
your resenting the act and trying to defend yourself, 
however you came by it. The law can ask no better 
justification than the deepest instincts of man. It 
is only by way of reply to the suggestion that you 
are disappointing the former owner, that you refer 
to his neglect having allowed the gradual dissociation 
between himself and what he daims, and the gradual 
association of it with another. If he knows that 
another is doing acts which on their face show that 
he is on the way toward establishing such an associa- 
tion, I should argue that in justice to that other he 
was bound at his peril to find out whether the other 
was acting under his permission, to see that he was 
warned, and if necessary, stopped. 

I have been speaking about the study of the law, 
and I have said next to nothing of what commonly 
is talked about in that connection text-books and 
the case system, and all the machinery with which 
a student comes most immediately in contact. Nor 
shall I say anything about them. Theory is my sub- 
ject, not practical details. The modes of teaching 
have been improved since my time, no doubt, but 
ability and industry will master the raw material 
with any mode. Theory is the most important part 
of the dogma of the law, as the architect is the most 
important man who takes part in the building of a 
house. The most important improvements of the 
last twenty-five years are improvements in theory. 
It is not to be feared as unpractical, for, to the compe- 
tent, it simply means going to the bottom of the 



THE PATH OF THE LAW 201 

subject. For the Incompetent, It sometimes is true, 
as has been said, that an interest in general ideas 
means an absence of particular knowledge. I re- 
member in army days reading of a youth who, being 
examined for the lowest grade and being asked a 
question about squadron drill, answered that he never 
had considered the evolutions of less than ten thou- 
sand men. But the weak and foolish must be left to 
their folly. The danger is that the able and practical 
minded should look with indifference or distrust upon 
ideas the connection of which with their business is 
remote. I heard a story, the other day, of a man 
who had a valet to whom he paid high wages, sub- 
ject to deduction for faults. One of his deductions 
was, "For lack of imagination, ive dollars/' The 
lack is not confined to valets. The object of ambi- 
tion, power, generally presents itself nowadays in 
the form of money alone. Money is the most im- 
mediate form, and is a proper object of desire. "The 
fortune," said Rachel, "is the measure of the intelli- 
gence." That is a good text to waken people out 
of a fooFs paradise. But, as Hegel says, 6 "It is in 
the end not the appetite, but the opinion, which has 
to be satisfied." To an imagination of any scope 
the most far-reaching form of power is not money, 
it is the command of ideas. If you want great ex- 
amples, read Mr. Leslie Stephen's History of English 
Thought in the Eighteenth Centwy, and see how a 
hundred years after his death the abstract specula- 
tions of Descartes had become a practical force o>a- 

BiiL iks Redifs, f 190, 



202. COLLECTED LEGAL PAPERS 

trolling the conduct of men. Read the works of the 
great German jurists, and see how much more the 
world is governed to-day by Kant than by Bonaparte. 
We cannot all be Descartes or Kant, but we all want 
happiness. And happiness, I am sure from having 
known many successful men, cannot be won simply 
by being counsel for great corporations and having 
an income of fifty thousand dollars. An intellect 
great enough to win the prize needs other food be- 
sides success. The remoter and more general aspects 
of the law are those which give it universal interest. 
It is through them that you not only become a great 
master in your calling, but connect your subject with 
the universe and catch an echo of the infinite, a 
glimpse of its unfathomable process, a hint of the 
universal law. 



THE THEORY OF LEGAL INTERPRETATION* 

THE paper upon the "Principles of Legal Interpre- 
tation/' by Mr. F. Vaughan Hawkins^ reprinted in 
Professor Thayer's recently published and excellent 
Preliminary Treatise on Evtdence y induces me to 
suggest what seems to me the theory of our rules 
of interpretation a theory which I think supports 
Lord Wensleydale and the others whom Mr. Haw- 
kins quotes and disapproves, If I correctly understand 
their meaning and his. 

It is true that in theory any document purporting 
to be serious and to have some legal effect has one 
meaning and no other, because the known object is 
to achieve some definite result. It is not true that 
in practice (and I know no reason why theory should 
disagree with the facts) a given word or even a given 
collocation of words has one meaning and no other. 
A word generally has several meanings^ even in the 
dictionary. You have to consider the sentence in 
which it stands to decide which of those meanings 
it bears in the particular case, and very likely will 
see that it there has a shade of significance more 
refined than any given in the word-book. But in 
this first step, at least, you are not troubling yourself 

* Saroard Ltm Rewi&m, VoL XDL 417 (1899). 
203 



204 COLLECTED LEGAL PAPERS 

about the Idiosyncrasies of the writer, you are con- 
sidering simply the general usages of speech. So 
when you let whatever galvanic current may come 
from the rest of the instrument run through the par- 
ticular sentence, you still are doing the same thing. 
How is it when you admit evidence of circumstances 
and read the document in the light of them? Is this 
trying to discover the particular intent of the individ- 
ual, to get into his mind and to bend what he said 
to what he wanted? No one would contend that 
such a process should be carried very far, but, as 
It seems to me, we do not take a step in that direc- 
tion. It is not a question of tact in drawing a line. 
We are after a different thing. What happens is 
this. Even the whole document is found to have 
a certain play in the joints when its words are 
translated into things by parol evidence, as they have 
to be. It does not disclose one meaning conclusively 
according to the laws of language. Thereupon we 
ask, not what this man meant, but what those words 
would mean in the mouth of a normal speaker of Eng- 
lish, using them in the circumstances in which they 
were used, and it is to the end of answering this last 
question that we let in evidence as to what the cir- 
cumstances were. But the normal speaker of Eng- 
lish is merely a special variety, a literary form, so 
to speak, of our old friend the prudent man. He 
is external to the particular writer, and a reference 
to him as the criterion is simply another instance of 
the externality of the law. 
But then it is said, and this is thought to be the 



THEORY OF LEGAL INTERPRETATION 205 

crux: In the case of a gift of Blackacre to John Smith, 
when the donor owned two Blackacres and the direc- 
tory reveals two John Smiths, you may give direct 
evidence of the donor's intention and it is only aa 
anomaly that you cannot give the same evidence in 
every case. I think, on the contrary, that the excep- 
tional rule is a proof of tie instinctive insight of the 
judges who established it. I refer again to the 
theory of our language. By the theory of our lan- 
guage, while other words may mean different things, 
a proper name means one person or thing and no 
other. If language perfectly performed its function, 
as Bentham wanted to make it, it would point out the 
person or thing in every case. But under our random 
system it sometimes happens that your name is 
Idem sonans with mine, and it may be the same even 
in spelling. But it never means you or me indiffer- 
ently. In theory of speech your name means you 
and my name means me, and the two names are 
different. They are different words. Licet idem sit 
nomen, tamen diversum est propter diversitatem 
personae? In such a case we let in evidence of 
intention not to help out what theory recognizes as 
an uncertainty of speech, and to read what the writer 
meant into what he has tried but failed to say, but, 
recognizing that he has spoken with theoretic cer- 
tainty, we inquire what he meant in order to find 
out what he has said. It is on this ground that 
there is no contract when the proper name used by 
one party means one sMp, and that used by the other 

* Bract 



206 COLLECTED LEGAL PAPERS 

means another. 2 The mere difference of Intent as 
such is immaterial. In the use of common names 
and words a plea of different meaning from that 
adopted by the court would be bad, but here the 
parties have said different things and never have ex- 
pressed a contract. If the donor, instead of saying 
"Blackacre," had said "my gold watch" and had 
owned more than one, inasmuch as the words, though 
singular, purport to describe any such watch belong- 
ing to the speaker, I suppose that no evidence of 
intention would be admitted. But I dare say that 
evidence of circumstances sufficient to show that 
the normal speaker of English would have meant 
a particular watch by the same words would be 
let in. 

I have stated what I suppose to be our general 
theory of construction. It remains to say a few 
words to justify it. Of course, the purpose of writ- 
ten instruments is to express some intention or state 
of mind of those who write them, and it is desirable 
to make that purpose effectual, so far as may be, if 
instruments are to be used. The question is how 
far the law ought to go in aid of the writers. In the 
case of contracts, to begin with them, it is obvious 
that they express the wishes not of one person but 
of two, and those two adversaries. If it turns out 
that one meant one thing and the other another, 
speaking generally, the only choice possible for the 

* Raffles v. Wlchefliatis, 2 H. & C. 906. See Mead v. Phemx 
Insurance Co., 158 Mass. 124; Hanson v. Globe Newspaper Co., 159 
Mass. 293, 305. 



THEORY OF LEGAL INTERPRETATION 207 

legislator is either to hold both parties to the judge's 
interpretation of the words in the sense which I have 
explained, or to allow the contract to be avoided 
because there has been no meeting of minds. The 
latter course not only would greatly enhance the 
difficulty of enforcing contracts against losing parties, 
but would run against a plain principle of justice. 
For each party to a contract has notice that the other 
will understand his words according to the usage of 
the normal speaker of English under the circum- 
stances, and therefore cannot complain if his words 
are taken in that sense. 8 

Different rules conceivably might be laid down for 
the construction of different kinds of writing. In the 
case of a statute, to turn from contracts to the 
opposite extreme, it would be possible to say that as 
we are dealing with the commands of the sovereign 
the only thing to do is to find out what the sovereign 
wants. If supreme power resided in the person of a 
despot who would cut off your hand or your head 
if you went wrong, probably one would take every 
available means to find out what was wanted. Yet 
in fact we do not deal differently with a statute from 
our way of dealing with a contract. We do not 
inquire what the legislature meant; we ask only what 
the statute means. In this country, at least, for 
constitutional reasons, if for no other, if the same 
legislature that passed it should declare at a later 

* In Na^i 9. Maiiiesota Tile BasaratiGe and Trust Company, 165 
Mass. 574, I thought that this principle should be carried further than 
the majority of the court were willing to go. 



208 COLLECTED LEGAL PAPERS 

date a statute to have a meaning which in the opinion 
of the court the words did not bear, I suppose that 
the declaratory act would have no effect upon inter- 
vening transactions unless in a place and case where 
retrospective legislation was allowed. As retrospec- 
tive legislation it would not work by way of construc- 
tion except in form. 

So in the case of a will. It is true that the test- 
ator is a despot, within limits, over his property, but 
he is required by statute to express his commands in 
writing, and that means that his words must be 
sufficient for the purpose when taken in the sense in 
which they would be used by the normal speaker of 
English under his circumstances. 

I may add that I think we should carry the external 
principle of construction even further than I have 
indicated. I do not suppose that you could prove, 
for purposes of construction as distinguished from 
avoidance, an oral declaration or even an agreement 
that words in a dispositive instrument making sense 
as they stand should have a different meaning from 
the common one; for instance, that the parties to a 
contract orally agreed that when they wrote five hun- 
dred feet it should mean one hundred inches, or at 
Bunker Hill Monument should signify Old South 
Church. 4 On the other hand, when you have the 
security of a local or class custom or habit of speech, 
it may be presumed that the writer conforms to the 
usage of his place or dass when that is what a normal 
person in his situation would do. But these cases 

* Goode v. Itifey, 153 Mass. s&S, 586. 



THEORY OF LEGAL INTERPRETATION 209 

are remote from the point of theory upon which I 
started to speak. 

It may be, after all, that the matter is one in which 
the important thing, the law, is settled, and different 
people will account for it by such theory as pleases 
them best, as in the ancient controversy whether the 
finder of a thing which had been thrown away by the 
owner got a title in privity by gift, or a new title by 
abandonment. That he got a title no one denied. 
But although practical men generally prefer to leave 
their major premises inarticulate, yet even for prac- 
tical purposes theory generally turns out the most 
important thing in the end. I am far from saying 
that it might not make a difference in the old question 
to which I have referred. 



LAW IN SCIENCE AND SCIENCE IN LAW * 

THE law of fashion is a law of life. The crest 
of the wave of human interest is always moving, 
and it is enough to know that the depth was greatest 
in respect of a certain feature or style in literature 
or music or painting a hundred years ago to be sure 
that at that point it no longer is so profound. I 
should draw the conclusion that artists and poets, 
instead of troubling themselves about the eternal, had 
better be satisfied if they can stir the feelings of a 
generation, but that is not my theme. It is more to 
my point to mention that what I have said about art 
is true within the limits of the possible in matters 
of the intellect. What do we mean when we talk 
about explaining a thing? A hundred years ago 
men explained any part of the universe by showing 
its fitness for certain ends, and demonstrating what 
they conceived to be its final cause according to a 
providential scheme. In our less theological and 
more scientific day, we explain an object by tracing 
the order and process of its growth and development 
from a starting point assumed as given. 

TMs process of historical explanation has been 

* An Address delivered by Mr. Justice Holmes before the New 
York State Bar Association on January 17, 1899. Harvard Law 
'Review, Vol. XIL, 443. 



LAW IN SCIENCE SCIENCE IN LAW 211 

applied to the matter of our profession, especially 
of recent years, with great success, and with so much 
eagerness, and with such a feeling that when you had 
the true historic dogma you had the last word not 
only in the present but for the immediate future, 
that I have felt warranted heretofore in throwing out 
the caution that continuity with the past is only a 
necessity and not a duty. As soon as a legislature 
is able to imagine abolishing the requirement of a 
consideration for a simple contract, it is at perfect 
liberty to abolish it, if it thinks it wise to do so, 
without the slightest regard to continuity with the 
past. That continuity simply limits the possibilities 
of our imagination, and settles the terms in which 
we shall be compelled to think. 

Historical explanation has two directions or as- 
pects, one practical and the other abstractly scientific* 
I by no means share that morality which finds in a 
remoter practice the justification of philosophy and 
science. I do not believe that we must justify our 
pursuits by the motive of social well-being. If we 
have satisfied ourselves that our pursuits are good for 
society, or at least not bad for it, I think that 
science, like art, may be pursued for the pleasure of 
the pursuit and of its fruits, as an end in itself. 
I somewhat sympathize with the Cambridge mathe- 
matician's praise of his theorem, "The best of it al 
is that it can never by any possibility be made of the 
slightest use to anybody for anything." I think it 
one of the glories of man that he does not sow seed, 
and weave doth, and produce all the other economic 



2i2 COLLECTED LEGAL PAPERS 

means simply to sustain and multiply other sowers 
and weavers that they in their turn may multiply, 
and so ad infinitum, but that on the contrary he 
devotes a certain part of his economic means to 
uneconomic ends ends, too, which he finds in him- 
self and not elsewhere. After the production of 
food and cloth has gone on a certain time, he stops 
producing and goes to the play, or he paints a picture, 
or asks unanswerable questions about the universe, 
and thus delightfully consumes a part of the world's 
food and clothing, while he idles away the only hours 
that fully account for themselves. 

Thinking in this way, you readily will understand 
that I do not consider the student of the history of 
legal doctrine bound to have a practical end in view. 
It is perfectly proper to regard and study the law 
simply as a great anthropological document. It is 
proper to resort to it to discover what ideals of so- 
ciety have been strong enough to reach that final 
form of expression, or what have been the changes 
in dominant ideals from century to century. It is 
proper to study it as an exercise in the morphology 
and transformation of human ideas. The study pur- 
sued for such ends becomes science in the strictest 
sense. Who could fail to be interested in the transi- 
tion through the priest's test of truth, 1 the miracle 
of the ordeal, and the soldier's, the battle of the duel, 
to the democratic verdict of the jury! Perhaps I 
might add, in view of the great increase of jury- 
waived cases, a later transition yet to the commer- 

1 1 do not foiget tiat tlic drardi afooished the ordeal. 



LAW IN SCIENCE SCIENCE IN LAW 21$ 

cial and rational test of the judgment of a man 
trained to decide. 

It is still only the minority who recognize how the 
change of emphasis which I have called the law of 
fashion has prevailed even in the realm of morals. 
The other day I was looking over Bradford's his- 
tory the book which Mr. Bayard brought as a 
gift from Lambeth to the Massachusetts State House 
and I was struck to see recounted the execution 
of a man with horrible solemnities for an offence 
which still, to be sure, stands on the statute book as 
a serious crime, but which no longer is often heard 
of in court, which many would regard as best pun- 
ished simply by the disgust of normal men, and which 
a few think of only as a physiological aberration, of 
interest mainly to the pathologist. I found in the 
same volume the ministers consulted as the find ex- 
pounders of the law, and learnedly demonstrating 
that what now we should consider as needing no other 
repression than a doctor's advice ? was a crime punish- 
able with death and to be ferreted out by searching 
the conscience of the accused, although after dis- 
cussion it was thought that torture should be reserved 
for state occasions. 

To take a less odious as well as less violent con- 
trast, when we read in the old books that it is the 
duty of one exercising a common calling to do his 
work upon demand and to do it with reasonable skill, 
we see that the gentleman is in the saddle and means 
to have the common people kept up to the mark for 
his convenience. We recognise the imperative tone 



214 COLLECTED LEGAL PAPERS 

which in our day has changed sides, and is of tener 
to be heard from the hotel clerk than from the guest. 
I spoke of the scientific study of the morphology 
and transformation of human ideas in the law, and 
perhaps the notion did not strike all of you as famil- 
iar. I am not aware that the study ever has been 
systematically pursued, but I have given some ex- 
amples as I have come upon them in my work, and 
perhaps I may mention some now by way of illustra- 
tion, which, so far as I know, have not been followed 
out by other writers. In the Lex Salica 2 the law 
of the Salian Franks you find going back to the 
fifth century a very mysterious person, later 3 named 
the salmannus the sale-man a third person who 
was called in to aid in completing the transfer of 
property in certain cases. The donor handed to him 
a symbolic staff which he in due season handed over 
in solemn form to the donee. If we may trust M. 
Dareste, and take our information at second hand, 
a copious source of error, it would look as if a similar 
use of a third person was known to the Egyptians 
and other early peoples. But what is certain is that 
we see the same form used down to modern times 
in England for the transfer of copyhold. I dare say 
that many of you were puzzled, as I was when I was 
a law student, at the strange handing over of a staff 
to the lord or steward of the manor as a first step 
toward conveying copyhold land to somebody else. 
It really is nothing but a survival of the old form 

Merkd, db. 46. 

* AD. 1108, Besder, 263, n. 



LAW IN SCIENCE SCIENCE IN LAW 215 

of the Salic law, as M. Vinogradoff at last has noticed, 
in his work on Villainage in England. There you 
have the Salic device in its original shape. But it 
is the transformations which it has undergone to 
which I wish to call your attention. The surrender 
to the steward is expressed to be to the use of the 
purchaser or donee. Now, although Mr. Kenelm 
Digby in his History of the Law of Real Property 
warns us that this has nothing to do with the doctrine 
of uses, I venture to think that, helped by the work 
of learned Germans as to the development of the 
saleman on the continent, I have shown heretofore 
that the saleman became in England the better known 
feoffee to uses, and thus that the connection between 
him and the steward of the manor when he receives 
the surrender of a copyhold is clear. But the execu- 
tor originally was nothing but a feoffee to uses. The 
heir was the man who paid his ancestor's debts and 
took his property. The executor did not step into 
the heir's shoes, and come fully to represent the per- 
son of the testator as to personal property and lia- 
bilities until after Bracton wrote his great treatise 
on the Laws of England. Surely a flower is not more 
unlike a leaf, or a segment of a skull more unlike 
a vertebra, than the executor as we know him is 
remote from his prototype, the saleman of the Salic 
law. I confess that such a development as that fills 
me with interest, not only for itself, but as an illus- 
tration of what you see all through the law the 
paucity of original ideas in man, and the slow, coast- 
ing way in which he works along from rudimentary 



2x6 COLLECTED LEGAL PAPERS 

beginnings to the complex and artificial conceptions 
of civilized life. It is like the niggardly uninventive- 
ness of nature in its other manifestations^ with its 
few smells or colors or types, its short list of ele- 
ments, working along In the same slow way from 
compound to compound until the dramatic impres- 
siveness of the most intricate compositions, which we 
call organic life, makes them seem different in kind 
from the elements out of which they are made, when 
set opposite to them in direct contrast. 

In a book which I printed a good many years ago 
I tried to establish another example of the develop- 
ment and transformation of ideas. The early law 
embodied hatred for any immediate source of hurt, 
which comes from the association of ideas and im- 
perfect analysis, in the form of proceedings against 
animals and inanimate objects, and of the noxae 
deditio by which the owner of the offending thing 
surrendered it and was free from any further lia- 
bility, I tried to show that from this primitive 
source came, in part at least, our modern responsi- 
bility of an owner for his animals and of a master 
for his servants acting within the scope of their em- 
ployment, the limited liability of shipowners tinder 
the law which allows them to surrender their vessel 
and free themselves, and that curious law of deodand, 
under which a steam engine was declared forfeited by 
the Court of Exchequer in 1842.* I shall have to 
suggest later that it played a part also in the develop- 
ment of contract, 

* Regina v. Eastern Counties Railway Company, 10 K. & W. 59. 



LAW IN SCIENCE SCIENCE IN LAW 217 

Examples like these lead us beyond the trans- 
formations of an idea to the broader field of the 
development of our more general legal conceptions. 
We have evolution in this sphere of conscious thought 
and action no less than in lower organic stages, but 
an evolution which must be studied in its own field. 
I venture to think that the study is not yet finished. 
Take for instance the origin of contract. A single 
view has prevailed with slight modifications since 
Sohm published Das Recht der Eheschliessung in 
1875. But fashion is potent in science as well as 
elsewhere, and it does not follow because Sohin 
smashed his predecessor that there may not arise 
a later champion who will make some impact upon 
him. Sohm, following a thought first suggested, I 
believe, by Savigny, and made familiar by Maine in 
his Ancient Law, sees the beginning of contract in 
an interrupted sale. This is expressed in later law 
by our common law debt, founded upon a quid pro 
quo received by the debtor from the creditor. Out 
of this, by a process differently conceived by different 
writers, arises the formal contract, the fides facta of 
the Salic law, the covenant familiar to us. And this 
dichotomy exhausts the matter. I do not say that 
this may not be proved to be the final and correct 
account, but there are some considerations which I 
should like to suggest in a summary way. We are 
not bound to assume with Sohm that his Prankish 
ancestors had a theory in their heads which, even if 
a trifle inarticulate, was the majestic peer of all that 
was done at Rome. The result of that assumption 



COLLECTED LEGAL PAPERS 

is to lead to the further one, tacitly made, but felt 
to be there, that there must have been some theory 
of contract from the beginning, if only you can find 
what it was. It seems to me well to remember that 
men begin with no theory at all, and with no such 
generalization as contract. They begin with par- 
ticular cases, and even when they have generalized 
they are often a long way from the final generaliza- 
tions of a later time. Down into this century con- 
sideration was described by enumeration, as you may 
see in Tidd's Practice, or Blackstone, 5 and only of 
late years has it been reduced to the universal ex- 
pression of detriment to the promises. So, bailment 
was bailment and nothing further until modern 
times. It was not contract. And so warranty was 
warranty, a duty imposed by law upon the vendor, 
and nothing more. 6 A trust still is only a trust, 
although according to the orthodox it creates merely 
a personal obligation. 

Well, I have called attention elsewhere to the 
fact that giving hostages may be followed back to 
the beginning of our legal history, as far back as 
sales, that is, and that out of the hostage grew the 
surety, quite independently of the development of 
debt or formal contract. If the obligation of the 
surety, who, by a paradox explained by his origin, 
appears often in early law without a principal con- 
tractor, as the only party bound, had furnished the 

9 1 Tidd, Ch. i.; 2 BL Comm. 444, 445. 

Glanv. X, C 16; Bracton, 151; i L5nmg, Vertragsbmch, 14, 
p. 105 ; d Sohm, last Rom. Law, 46, n, n. 7. 



LAW IN SCIENCE SCIENCE IN LAW 219 

analogy for other undertakings, we never should have 
had the doctrine of consideration. If other under- 
takings were to be governed by the analogy of the 
law developed out of sales, sureties must either have 
received a quid pro quo or have made a covenant. 
There was a clash between the competing ideas, and 
just as commerce was prevailing over war the chil- 
dren of the sale drove the child of the hostage from 
the field. In the time of Edward III. it was decided 
that a surety was not bound without a covenant, 
except in certain cities where local custom maintained 
the ancient law. Warranty of land came to re- 
quire, and thus to be, a covenant in the same way, 
although the warranty of title upon a sale of chattels 
still retains its old characteristics, except that it now 
is thought of as a contract. 7 

But the hostage was not the only competitor for 
domination. The oath also goes back as far as the 
history of our race. 8 It started from a different 
point, and, leaving the possible difference of sanc- 
tion on one side, it might have been made to cover 
the whole field of promises. The breach of their 
promissory oath by witnesses still is punished as 
perjury, and formerly there were severe penalties 
for the jury if convicted of a similar offence by 
attaint. 9 The solemnity was used for many other 
purposes, and, if the church had had its way, the 

7 Y. B. 13 & 14 Ed. m, so. 

8 Caesar, B. G., IV, u; Ammianus MarceDinus, XVII, i, 13, 
furantes conceptis ritu patrio verbis. 

9 Bracton, 22b. 



220 COLLECTED LEGAL PAPERS 

oath, helped by its cousin the plighting of troth, 
would have been very likely to succeed. In the 
time of Henry III., faith, oath, and writing, that 
is, the covenant, were the popular familiar forms of 
promise. The plighting of a man's faith or troth, 
still known to us in the marriage ceremony, was in 
common use, and the courts of the church claimed 
jurisdiction over it as well as over the oath. I have 
called attention elsewhere to a hint of inclination 
on the part of the early clerical chancellors to con- 
tinue the clerical jurisdiction in another court, and 
to enforce the ancient form of obligation. Professor 
Ames has controverted my suggestion, but I cannot 
but think it of significance that down to later times 
we still find the ecclesiastical tribunals punishing 
breach of faith or of promissory oaths with spiritual 
penalties. When we know that a certain form of 
undertaking was in general use, and that it was en- 
forced by the clergy in their own courts, a very little 
evidence is enough to make us believe that in a new 
court, also presided over by a clergyman and with 
no substantive law of its own, the idea of enforcing 
it well might have been entertained, especially in 
view of the restrictions which the civil power put 
upon the church. But oath and plighting of troth 
did not survive in the secular forum except as an 
occasional solemnity, and I have mentioned them 
only to show a lively example of the struggle for 
life among competing ideas, and of the ultimate vic- 
tory and survival of the strongest. After victory 
the law of covenant and debt went on, and consoli- 



LAW IN SCIENCE SCIENCE IN LAW 221 

dated and developed their empire in a way that is 
familiar to you all, until they in their turn lost some- 
thing of their power and prestige in consequence of 
the rise of a new rival, Assumpsit 

There were other seeds which dropped by the way- 
side in early law, and which were germs of relations 
that might now be termed contractual, such as the 
blood covenant, by which people bound themselves 
together or made themselves of one substance by 
drinking the blood or eating the flesh of a newly 
killed animal. Such was the fiction of family rela- 
tionship, by which, for instance, the Aedui symbol- 
ized their alliance with the Romans, 10 I may notice 
in this connection that I suspect that the mundium 
or early German guardianship was the origin of our 
modern bail, while, as I have said, the surety came 
from a different source. I mention these only to 
bring still closer home the struggle for existence be- 
tween competing ideas and forms to which I have 
referred. In some instances the vanquished com- 
petitor has perished. In some it has put on the 
livery of its conqueror, and has become in form and 
external appearance merely a case of covenant or 
assumpsit. 

Another important matter is the way in which 
the various obligations were made binding after they 
were recognized. A breach of oath of course brought 
with it the displeasure of the gods. In other cases, 
as might be expected, we find hints that liabilities 
of a more primitive sort were extended to the new 

1 Strabo, IV., 32. 



222 COLLECTED LEGAL PAPERS 

candidates for legal recognition. In the Roman law 
a failure to pay the price of a purchase seems to 
have suggested the analogy of theft. All over the 
world slavery for debt is found, and this seems not 
to have stood on the purely practical considerations 
which first would occur to us, but upon a notion akin 
to the noxal surrender of the offending body for a 
tort. There is a mass of evidence that various early 
contracts in the systems of law from which our own 
is descended carried with them the notion of pledg- 
ing the person of the contracting party a notion 
which we see in its extreme form in the seizure or 
division of the dead body of the debtor, 11 and which 
seems to come out in the maxim Debita inhaerent 
ossibus debitoris. 

I am not going to trace the development of every 
branch of our law in succession, but if we turn to the 
law of torts we find there, perhaps even more notice- 
ably than in the law of contracts, another evolution- 
ary process which Mr. Herbert Spencer has made 
familiar to us by the name of Integration. The 
first stage of torts embraces little if anything beyond 
those simple acts of violence where the appeals of 
death, of wounding or maiming, of arson and the 
like had taken the place of self-help, to be succeeded 
by the modification known as the action of trespass. 
But when the action on the case let libel and slander 
and all the other wrongs which are known to the 

II g eej e ^ Three Metrical Romances, Camden Soc. 1842, introd. 
p, xxvi, and cantos XII and XXH; Boccaccio, Bonn's tr., p. 444 n., 
referring to an old English ballad. 



LAW IN SCIENCE SCIENCE IN LAW 223 

modern law Into the civil courts, for centuries each 
of the recognized torts had its special history, its 
own precedents, and no one dreamed, so far as I 
know, that the different cases of liability were, or 
ought to be, governed by the same principles through- 
out. As is said in the preface to Mr. Jaggard's 
book, "the use of a book on Torts, as a distinct 
subject, was a few years ago a matter of ridicule." 
You may see the change which has taken place by 
comparing Hilliard on Torts, which proceeds by 
enumeration in successive chapters through assault 
and battery, libel and slander, nuisance, trespass, 
conversion, etc., with Sir Frederick Pollock's Intro- 
duction, in which he says that the purpose of his 
book "is to show that there really is a Law of Torts, 
not merely a number of rules of law about various 
kinds of torts that this is a true living branch 
of the Common Law, not a collection of heteroge- 
neous instances." It would be bold, perhaps, to 
say that the integration was complete, that it did 
not rest partly in tendency. The recent much dis- 
cussed case of Allen v. Flood, in the House of Lords, 
seems to me to indicate that, in the view of the 
older generation even of able and learned men, the 
foundation of liability still is somewhat in the air, 
and that tradition and enumeration are the best 
guides to this day. But I have no doubt that the 
generalizing principle will prevail, as generalization 
so often prevails, even in advance of evidence, be- 
cause of the ease of mind and comfort which it brings. 
Any one who thinks about the world as I do does 



224 COLLECTED LEGAL PAPERS 

not need proof that the scientific study of any part 
of it has an interest which is the same in kind as 
that of any other part. If the examples which I 
have given fail to make the interest plain, there is 
no use in my adding to them, and so I shall pass to 
another part of my subject. But first let me add 
a word. The man of science in the law is not merely 
a bookworm. To a microscopic eye for detail he 
must unite an insight which tells him what details 
are significant. Not every maker of exact investi- 
gation counts, but only he who directs his investiga- 
tion to a crucial point. But I doubt if there is any 
more exalted form of life than that of a great ab- 
stract thinker, wrapt in the successful study of prob- 
lems to which he devotes himself, for an end which is 
neither unselfish nor selfish in the common sense 
of those words, but is simply to feed the deepest 
hunger and to use the greatest gifts of his soul. 

But after all the place for a man who is complete 
in all his powers is in the fight. The professor, 
the man of letters, gives up one-half of life that his 
protected talent may grow and flower in peace. But 
to make up your mind at your peril upon a living 
question, for purposes of action, calls upon your 
whole nature. I trust that I have shown that I 
appreciate what I thus far have spoken of as if it 
were the only form of the scientific study of law, but 
of course I think, as other people do, that the main 
ends of the subject are practical, and from a practical 
point of view, history, with which I have been dealing 
thus far, is only a means, and one of the least of 



LAW IN SCIENCE SCIENCE IN LAW 225 

the means, of mastering a tool. From a practical 
point of view, aS I have illustrated upon another 
occasion, its use is mainly negative and skeptical. 
It may help us to know the true limit of a doctrine, 
but its chief good is to burst inflated explanations. 
Every one instinctively recognizes that in these days 
the justification of a law for us cannot be found in 
the fact that our fathers always have followed it. 
It must be found in some help which the law brings 
toward reaching a social end which the governing 
power of the community has made up its mind that 
it wants. And when a lawyer sees a rule of law in 
force he is very apt to invent, if he does not find, 
some ground of policy for its base. But in fact some 
rules are mere survivals. Many might as well be 
different, and history is the means by which we 
measure the power which the past has had to govern 
the present in spite of ourselves, so to speak, by im- 
posing traditions which no longer meet their original 
end. History sets us free and enables us to make 
up our minds dispassionately whether the survival 
which we are enforcing answers any new purpose 
when it has ceased to answer the old. Notwithstand- 
ing the contrasts which I have been making, the prac- 
tical study of the law ought also to be scientific. 
The true science of the law does not consist mainly 
in a theological working out of dogma or a logical 
development as in mathematics, or only in a study 
of it as an anthropological document from the out- 
side; an even more important part consists in the 
establishment of its postulates from within upon 



226 COLLECTED LEGAL PAPERS 

accurately measured social desires instead of tradi- 
tion. It is this latter part to which I now am turn- 
ing, and I begin with one or two instances of the 
help of history in clearing away rubbish instances 
of detail from my own experience. 

Last autumn our court had to consider the grounds 
upon which evidence of fresh complaint by a rav- 
ished woman is admitted as part of the government's 
case in an indictment for rape. All agree that it is 
an exception to the ordinary rules of evidence to 
allow a witness to be corroborated by proof that he 
has said the same thing elsewhere when not under 
oath, except possibly by way of rebuttal under ex- 
traordinary circumstances. But there is the excep- 
tion, almost as well settled as the rule, and courts and 
lawyers finding the law to be established proceed to 
account for it by consulting their wits. We are told 
that the outrage is so great that there is a natural 
presumption that a virtuous woman would disclose 
it at the first suitable opportunity. I confess that 
I should think this was about the last crime in which 
such a presumption could be made, and that it was 
far more likely that a man who had had his pocket 
picked or who had been the victim of an attempt to 
murder would speak of it, than that a sensitive 
woman would disclose such a horror. If we look 
into history no further than Hale's Pleas of the 
Crown, where we find the doctrine, we get the real 
reason and the simple truth. In an appeal of rape 
the first step was for the woman to raise hue and 
cry. Lord Hale, after stating that fact, goes on to 



LAW IN SCIENCE SCIENCE IN LAW 227 

say that upon an indictment for the same offence 
the woman can testify, and that her testimony will 
be corroborated if she made fresh complaint and 
pursued the offender. That is the hue and cry over 
again. At that time there were few rules of evi- 
dence. Later our laws of evidence were systema- 
tized and developed. But the authority of Lord 
Hale has caused his dictum to survive as law in the 
particular case, while the principle upon which it 
would have to be justified has been destroyed. The 
exception in other words is a pure survival, having 
nothing or very little to back it except that the prac- 
tice is established. 12 

In a somewhat earlier case 13 I tried to show that 
the doctrine of trespass ab initio in like manner was 
the survival in a particular class of cases of a primi- 
tive rule of evidence, which established intent by 
a presumption of law from subsequent conduct, after 
the rule had gone to pieces and had been forgotten 
as a whole. Since that decision Professor Ames has 
made some suggestions which may or may not modify 
or enlarge the view which I took, but which equally 
leave the doctrine a survival, the reasons for which 
long have disappeared. 

In Brower v. Fisher, 14 the defendant, a deaf and 
dumb person, had conveyed to the plaintiff real and 
personal property, and had got a judgment against 
the plaintiff for the price. The plaintiff brought a 

12 Commonwealth t?. Geary, 172 Mass. 172. 
18 Commonwealth v. Rubin, 165 Mass. 453. 
i* 4 Johns. Ch. 441. 



228 COLLECTED LEGAL PAPERS 

bill to find out whether the conveyance was legal, 
and got an injunction pendente lite to stay execu- 
tion on the judgment. On the plaintiff's petition 
a commission of lunacy was issued to inquire whether 
the defendant was compos mentis. It was found 
that he was so unless the fact that he was born deaf 
and dumb made him otherwise. Thereupon Chan- 
cellor Kent dismissed the bill but held the inquiry 
so reasonable that he imposed no costs. The old 
books of England fully justified his view; and why? 
History again gives us the true reason. The Roman 
law held very properly that the dumb, and by ex- 
tension the deaf, could not make the contract called 
stipulatio because the essence of that contract was 
a formal question and answer which the dumb could 
not utter and the deaf could not hear. Bracton 
copies the Roman law and repeats the true reason, 
that they could not express assent, cons entire; but 
shows that he had missed the meaning of stipidari 
by suggesting that perhaps it might be done by 
gestures or writing. Fleta copied Bracton, but 
seemed to think that the trouble was inability to 
bring the consenting mind, and whereas the Roman 
law explained that the rule did not apply to one 
who was only hard of hearing qui tardius exaudit 
Fleta seems to have supposed that this pointed 
to a difference between a man born deaf and dumb 
and one who became so later in life. 15 In Perkins's 
Profitable Book, this is improved upon by requiring 
that the man should be bora blind, deaf, and dumb, 

15 But see C. 6, 22, 10. 



LAW IN SCIENCE SCIENCE IN LAW 229 

and then the reason Is developed that "a man that 
is born blind, deaf, and dumb can have no under- 
standing, so that he cannot make a gift or a grant. 37 18 
In a case before Vice-Chancellor Wood 1T good sense 
prevailed, and it was laid down that there is no ex- 
ception to the presumption of sanity in the case of a 
deaf and dumb person. 

Other cases of what I have called inflated and un- 
real explanations, which collapse at the touch of 
history, are the liability of a master for the torts of 
his servant in the course of his employment, to which 
I have referred earlier, and which thus far never, in 
my opinion, has been put upon a rational footing; 
and the liability of a common carrier, which, as I 
conceive, is another distorted survival from the abso- 
lute responsibility of bailees in early law, crossed 
with the liability of those exercising a common calling 
to which I have referred. These examples are suffi- 
cient, I hope, to illustrate my meaning, and to point 
out the danger of inventing reasons offhand for what- 
ever we find established in the law. They lead me 
to some other general considerations in which history 
plays no part, or a minor part, but in which my 
object is to show the true process of law-making, and 
the real meaning of a decision upon a doubtful case 
and thus, as in what I have said before, to help in 
substituting a scientific foundation for empty words, 

I pass from unreal explanations to unreal formulas 
and inadequate generalizations, and I will take up 

i PL 25; Co, Lit. 42d. 

1T Harrod v. Harrod, i K. & J. 4, g. 



COLLECTED LEGAL PAPERS 

one or two with especial reference to the problems 
with which we have to deal at the present time. The 
first illustration which occurs to me, especially in view 
of what I have been saying, is suggested by another 
example of the power of fashion. I am immensely 
struck with the blind imitativeness of man when I 
see how a doctrine, a discrimination, even a phrase, 
will run in a year or two over the whole English- 
speaking world. Lately have we not all been bored 
to death with volenti non fit injuria, and with Lord 
Justice Bowen's remark that it is volenti and not 
scienti? I congratulate any State in whose reports 
you do not see the maxim and its qualification re- 
peated. I blush to say that I have been as guilty 
as the rest. Do we not hear every day of taking the 
risk an expression which we never heard used as 
it now is until within a very few years? Do we not 
hear constantly of invitation and trap which came 
into vogue within the memory of many, if not most 
of those who are here? Heaven forbid that I should 
find fault with an expression because it is new, or 
with the last mentioned expressions on any ground! 
Judges commonly are elderly men, and are more 
likely to hate at sight any analysis to which they 
are not accustomed, and which disturbs repose of 
mind, than to fall in love with novelties. Every liv- 
ing sentence which shows a mind at work for itself 
is to be welcomed. It is not the first use but the 
tiresome repetition of inadequate catch words which 
I am observing phrases which originally were con- 
tributions, but which, by their very felicity, delay 



LAW IN SCIENCE SCIENCE IN LAW 231 

further analysis for fifty years. That comes from 
the same source as dislike of novelty intellectual 
indolence or weakness a slackening in the eternal 
pursuit of the more exact. 

The growth of education is an increase in the 
knowledge of measure. To use words familiar to 
logic and to science, it is a substitution of quanti- 
tative for qualitative judgments. The difference 
between the criticism of a work of art by a man 
of perception without technical training and that by 
a critic of the studio will illustrate what I mean. 
The first, on seeing a statue, will say, "It is gro- 
tesque/' a judgment of quality merely; the second 
will say, "That statue is so many heads high, instead 
of the normal so many heads." His judgment is one 
of quantity. On hearing a passage of Beethoven's 
Ninth Symphony the first will say, "What a gorgeous 
sudden outburst of sunshine!" the second, "Yes, 
great idea to bring in his major third just there, 
wasn't it?" Well, in the law we only occasionally 
can reach an absolutely final and quantitative de- 
termination, because the worth of the competing 
social ends which respectively solicit a judgment for 
the plaintiff or the defendant cannot be reduced to 
number and accurately fixed. The worth, that is, 
the intensity of the competing desires, varies with 
the varying ideals of the time, and, if the desires 
were constant, we could not get beyond a relative 
decision that one was greater and one was less. But 
it is of the essence of improvement that we should 
be as accurate as we can. Now to recur to such 



COLLECTED LEGAL PAPERS 

expressions as taking the risk and volenti non fit 
injuria, which are very well for once in the sprightly 
mouth which first applies them, the objection to the 
repetition of them as accepted legal formulas is that 
they do not represent a final analysis, but dodge diffi- 
culty and responsibility with a rhetorical phrase. 
When we say that a workman takes a certain risk as 
incident to his employment, we mean that on some 
general grounds of policy blindly felt or articulately 
present to our mind, we read into his contract a term 
of which he never thought; and the real question in 
every case is, What are the grounds, and how far 
do they extend? The question put in that form 
becomes at once and plainly a question for scientific 
determination, that is, for quantitative comparison 
by means of whatever measure we command. When 
we speak of taking the risk apart from contract, I 
believe that we merely are expressing what the law 
means by negligence, when for some reason or other 
we wish to express it in a conciliatory form. 

In our approach towards exactness we constantly 
tend to work out definite lines or equators to mark 
distinctions which we first notice as a difference of 
poles. It is evident in the beginning that there must 
be differences in the legal position of infants and 
adults. In the end we establish twenty-one as the 
dividing point. There is a difference manifest at 
the outset between night and day. The statutes of 
Massachusetts fix the dividing points at one hour 
after sunset and one hour before sunrise, ascertained 
according to mean time. When he has discovered 



LAW IN SCIENCE SCIENCE IN LAW 333 

that a difference is a difference of degree, that dis- 
tinguished extremes have between them a penumbra 
in which one gradually shades into the other, a tyro 
thinks to puzzle you by asking where you are going 
to draw the line, and an advocate of more experience 
will show the arbitrariness of the line proposed by 
putting cases very near to it on one side or the other. 
But the theory of the law is that such lines exist, be- 
cause the theory of the law as to any possible conduct 
is that it is either lawful or unlawful. As that dif- 
ference has no gradation about it, when applied to 
shades of conduct that are very near each other it 
has an arbitrary look. We like to disguise the arbi- 
trariness, we like to save ourselves the trouble of 
nice and doubtful discriminations. In some regions 
of conduct of a special sort we have to be informed 
of facts which we do not know before we can draw 
our lines intelligently, and so, as we get near the 
dividing point, we call in the jury. From saying that 
we will leave a question to the jury to saying that 
it is a question of fact is but a step, and the result 
is that at this day it has come to be a widespread 
doctrine that negligence not only is a question for 
the jury but is a question of fact I have heard 
it urged with great vehemence by counsel, and calmly 
maintained by professors that, in addition to their 
wrongs to labor, courts were encroaching upon the 
province of the jury when they directed a verdict 
in a negligence case, even in the unobtrusive form 
of a ruling that there was no evidence of neglect. 
1 venture to think, on the other hand, now, as 



234 COLLECTED LEGAL PAPERS 

I thought twenty years ago, before I went upon the 
bench, that every time that a judge declines to 
rule whether certain conduct is negligent or not he 
avows his inability to state the law, and that the 
meaning of leaving nice questions to the jury is that 
while if a question of law is pretty clear we can 
decide it, as it is our duty to do, if it is difficult it 
can be decided better by twelve men at random from 
the street* If a man fires a gun over a prairie that 
looks empty to the horizon, or crosses a railroad 
which he can see is clear for a thousand yards each 
way, he is not negligent, that is, he is free from legal 
liability in the first case, he has not prevented his 
recovery by his own conduct, if he is run over, in 
the second, as matter of law. If he fires a gun into 
a crowded street, or tries to cross a track ten feet 
in front of an express train in full sight running sixty 
miles an hour, he is liable, or he cannot recover, 
again as matter of law, supposing these to be all 
the facts in the case. What new question of fact 
is introduced if the place of firing is something half 
way between a prairie and a crowded street, or if 
the express train is two hundred, one hundred, or 
fifty yards away? I do not wish to repeat arguments 
which I published long ago, and which have been 
more or less quoted in leading text-books. I only 
wish to insist that false reasons and false analogies 
shall not be relied upon for daily practice. It is so 
easy to accept the phrase "there is no evidence of 
negligence," and thence to infer, as the English 
House of Lords has inferred, as Professor Thayer 



LAW IN SCIENCE SCIENCE IN LAW 235 

infers in his admirable Preliminary Treatise on Evi- 
dence which has appeared since these words were 
written, that the question is the same in kind as any 
other question whether there is evidence of a fact. 
When we rule on evidence of negligence we are 
ruling on a standard of conduct, a standard which we 
hold the parties bound to know beforehand, and 
which in theory is always the same upon the same 
facts and not a matter dependent upon the whim of 
the particular jury or the eloquence of the particular 
advocate. And I may be permitted to observe that, 
referring once more to history, similar questions 
originally were, and to some extent still are, dealt 
with as questions of law. It was and is so on the 
question of probable cause in malicious prosecution. 18 
It was so on the question of necessaries for an 
infant. 19 It was so in questions of what is reason- 
able, 20 as a reasonable fine, 21 convenient time, 22 
seasonable time, 23 reasonable time, 24 reasonable notice 
of dishonor. 25 It is so in regard to the remoteness 



18 Knight v. Jermin, Cro. Eliz. 134; S.C. nom. Knight v. German, 
Cro. Eliz. 70; Paine v. Rochester, Cro. Eliz. 871; Chambers v. Taylor, 
Cro. Eliz. 900. 

19 Mackarell v. Bachelor, Cro. Eliz. 583. As to married women 
see Manby v. Scott, i Siderfm, 109, 2 Sm. L.C. 

20 Caterall v. Marshall, i Mod. 70. 

21 Hobart v. Hammond, 4 Co. Rep. 270. 

22 Stodder v. Harvey, Cro. Jac. 204. 

2 3 Bell v. Wardell, Willes, 202, AD. 1740. 
2 * Butler v. Play, i Mod. 27. 

2 5 Tindal v. Brown, i T.R. 167, AX). 1786. In this case an exact 
line has been worked out for commercial paper, and an arbitrary rule 
established. 



236 COLLECTED LEGAL PAPERS 

of damage in an action of contract. 26 Originally in 
malicious prosecution, probable cause, instead of be- 
ing negatived in the declaration, was pleaded by the 
defendant, and the court passed upon the sufficiency 
of the cause alleged. In the famous case of Weaver 
i). Ward, 27 the same course was suggested as proper 
for negligence. I quote: "as if the defendant had 
said that the plaintiff ran across his piece when it 
was discharging, or had set forth the case with the 
circumstances, so as it had appeared to the court that 
it had been inevitable, and that the defendant had 
committed no negligence to give occasion to the 
hurt." But about the middle of the last century, 
when the rale of conduct was complicated with prac- 
tical details the court began to leave some of these 
questions to the jury. Nevertheless, Mr. Starkie, a 
man of intellect, who was not imposed upon by 
phrases, very nearly saw the ground upon which it 
was done, and puts it on the purely practical distinc- 
tion that when the circumstances are too special and 
complicated for a general rule to be laid down the 
jury may be called in. But it is obvious that a 
standard of conduct does not cease to be law because 
the facts to which that standard applies are not 
likely often to be repeated. 

I do not believe that the jury have any historic 
or a priori right to decide any standard of conduct. 

26 Hobbs v. London & Southwestern Railway, L.R. 10 QJB. in, 
122; Hammond & Co. v, Bussey, 20 QJ3.D. 79, 89; Johnston v. Faxon, 
172 Mass., 466. 

27 Hobart, 134. 



LAW IN SCIENCE SCIENCE IN LAW 237 

I think that the logic of the contrary view would be 
that every decision upon such a question by the court 
is an invasion of their province, and that all the law 
properly is in their breasts. I refer to the subject, 
however, merely as another matter in which phrases 
have taken the place of real reasons, and to do my 
part toward asserting a certain freedom of approach 
in dealing with negligence cases, not because I wish 
to quarrel with the existing and settled practice. I 
think that practice may be a good one, as it certainly 
is convenient, for Mr. Starkie's reason. There are 
many cases where no one could lay down a standard 
of conduct intelligently without hearing evidence 
upon that, as well as concerning what the conduct 
was. And although it does not follow that such 
evidence is for the jury, any more than the question 
of fact whether a legislature passed a certain statute, 
still they are a convenient tribunal, and if the evi- 
dence to establish a rule of law is to be left to them, 
it seems natural to leave the conclusion from the 
evidence to them as well. I confess that in my expe- 
rience I have not found juries specially inspired for 
the discovery of truth. I have not noticed that they 
could see further into things or form a saner judg- 
ment than a sensible and well trained judge. I have 
not found them freer from prejudice than an ordi- 
nary judge would be. Indeed one reason why I 
believe in our practice of leaving questions of negli- 
gence to them is what is precisely one of their gravest 
defects from the point of view of their theoretical 
function: that they will introduce into their verdict 



238 COLLECTED LEGAL PAPERS 

a certain amount a very large amount, so far as 
I have observed of popular prejudice, and thus 
keep the administration of the law in accord with 
the wishes and feelings of the community. Possibly 
such a justification is a little like that which an 
eminent English barrister gave me many years ago 
for the distinction between barristers and solicitors. 
It was in substance that if law was to be practised 
somebody had to be damned, and he preferred that 
it should be somebody else. 

My object is not so much to point out what seem 
to me to be fallacies in particular cases as to enforce 
by various examples and in various applications the 
need of scrutinizing the reasons for the rules which 
we follow, and of not being contented with hollow 
forms of words merely because they have been used 
very often and have been repeated from one end of 
the Union to the other. We must think things not 
words, or at least we must constantly translate our 
words into the facts for which they stand, if we are 
to keep to the real and the true. I sometimes tell 
students that the law schools pursue an inspirational 
combined with a logical method, that is, the postu- 
lates are taken for granted upon authority without 
inquiry into their worth, and then logic is used as 
the only tool to develop the results. It is a neces- 
sary method for the purpose of teaching dogma. 
But inasmuch as the real justification of a rale of 
law, if there be one, is that it helps to bring about 
a social end which we desire, it is no less necessary 
that those who make and develop the law should 



LAW IN SCIENCE SCIENCE IN LAW 239 

have those ends articulately in their minds. I do 
not expect or think it desirable that the judges should 
undertake to renovate the law. That is not their 
province. Indeed precisely because I believe that 
the world would be just as well off if it lived 
under laws that differed from ours in many ways, 
and because I believe that the daim of our 
especial code to respect is simply that it exists, 
that it is the one to which we have become 
accustomed, and not that it represents an eternal 
principle, I am slow to consent to overruling 
a precedent, and think that our important duty is to 
see that the judicial duel shall be fought out in the 
accustomed way. But I think it most important to 
remember whenever a doubtful case arises, with cer- 
tain analogies on one side and other analogies on the 
other, that what really is before us is a conflict 
between two social desires, each of which seeks to 
extend its dominion over the case, and which can- 
not both have their way. The social question is 
which desire is stronger at the point of conflict. 
The judicial one may be narrower, because one or 
the other desire may have been expressed in previous 
decisions to such an extent that logic requires us 
to assume it to preponderate in the one before us. 
But if that be dearly so, the case is not a doubtful 
one. Where there is doubt the simple tool of logic 
does not suffice, and even if it is disguised and un- 
consdous, the judges are called on to exercise the 
sovereign prerogative of dioice. 
I have given an example of what seems to me the 



240 COLLECTED LEGAL PAPERS 

unlnstructive and Indolent use of phrases to save the 
trouble of thinking closely, in the expression "taking 
the risk," and of what I think a misleading use in 
calling every question left to the jury a question 
of fact. Let me give one of over-generalization, or 
rather of the danger of reasoning from generaliza- 
tions unless you have the particulars which they em- 
brace in mind. A generalization is empty so far as 
it is general. Its value depends on the number of 
particulars which it calls up to the speaker and the 
hearer. Hence the futility of arguments on economic 
questions by any one whose memory is not stored 
with economic facts. Allen v. Flood was decided 
lately by the English House of Lords upon a case of 
maliciously inducing workmen to leave the plaintiff's 
employ. It is made harder to say what the precise 
issue before the House was, by the fact that except 
in fragmentary quotations it does not appear what 
the jury were told would amount to a malicious inter- 
ference. I infer that they were instructed as in 
Temperton v. Russell, 28 in such a way that their 
finding meant little more than that the defendant 
had acted with knowledge and understanding of the 
harm which he would inflict if successful. Or if I 
should add an intent to harm the plaintiff without 
reference to any immediate advantage to the defend- 
ant, still I do not understand that finding meant 
that the defendant's act was done from disinterest- 
edly malevolent motives, and not from a wish to 
better the defendant's union in a battle of the mar- 

28 *893i I QJ&. 71$. 



LAW IN SCIENCE SCIENCE IN LAW 241 

ket. Taking the point decided to be what I suppose 
it to be, this case confirms opinions which I have had 
occasion to express judicially, and commands my 
hearty assent. But in the elaborate, although to my 
notion inadequate, discussion which took place, emi- 
nent judges intimated that anything which a man 
has a right to do he has a right to do whatever his 
motives, and this has been hailed as a triumph of the 
principle of external standards in the law, a prin- 
ciple which I have done my best to advocate as well 
as to name. Now here the reasoning starts from the 
vague generalization Right, and one asks himself at 
once whether it is definite enough to stand the 
strain. If the scope of the right is already deter- 
mined as absolute and irrespective of motive, cadit 
quaestio, there is nothing to argue about. So if all 
rights have that scope. But if different rights are 
of different extent, if they stand on different grounds 
of policy and have different histories, it does not fol- 
low that because one right is absolute, another is 
and if you simply say all rigjits shall be so, that is 
only a pontifical or imperial way of forbidding dis- 
cussion. The right to sell property is about as abso- 
lute as any I can think of, although, under statutes 
at least, even that may be affected by motive, as in 
the case of an intent to prefer creditors. But the 
privilege of a master to state his servant's character 
to one who is thinking of employing him is also a 
right within its limits. Is it equally extensive? I 
suppose it would extend to mistaken statements vol- 
unteered in good faith out of love for the possible 



242 COLLECTED LEGAL PAPERS 

employer. Would it extend to such statements 
volunteered simply out of hate for the man? To 
my mind here, again, generalities are worse than use- 
less, and the only way to solve the problem presented 
is to weigh the reasons for the particular right claimed 
and those for the competing right to be free from 
slander as well as one can, and to decide which set 
preponderates. Any solution in general terms seems 
to me to mark a want of analytic power. 

Gentlemen, I have tried to show by examples 
something of the interest of science as applied to the 
law, and to point out some possible improvement in 
our way of approaching practical questions in the 
same sphere. To the latter attempt, no doubt, many 
will hardly be ready to yield me their assent. But 
in that field, as in the other, I have had in mind an 
ultimate dependence upon science because it is finally 
for science to determine, so far as it can, the relative 
worth of our different social ends, and, as I have 
tried to hint, it is our estimate of the proportion be- 
tween these, now often blind and unconscious, that 
leads us to insist upon and to enlarge the sphere 
of one principle and to allow another gradually to 
dwindle into atrophy. Very likely it may be that 
with all the help that statistics and every modern 
appliance can bring us there never will be a common- 
wealth in which science is everywhere supreme. But 
it is an ideal, and without ideals what is life worth? 
They furnish us our perspectives and open glimpses 
of the infinite. It often is a merit of an ideal to 
be unattainable. Its being so keeps forever before 



LAW IN SCIENCE SCIENCE IN LAW 243 

us something more to be done, and saves us from 
the ennui of a monotonous perfection. At the least 
it glorifies dull details, and uplifts and sustains weary 
years of toil with George Herbert's often quoted 
but ever-inspiring verse: 

"Who sweeps a room as for Thy laws, 
Makes that and the action fine." 



SPEECH 

AT A DINNER GIVEN TO CHIEF JUSTICE HOLMES 

BY THE BAR ASSOCIATION OF BOSTON 

ON MARCH 7, 1900. * 

GENTLEMEN OF THE SUFFOLK BAR: 

THE kindness of this reception almost unmans me, 
and it shakes me the more when taken with a kind 
of seriousness which the moment has for me. As 
with a drowning man, the past is telescoped into a 
minute, and the stages are all here at once in my 
mind. The day before yesterday I was at the law 
school, fresh from the army, arguing cases in a little 
club with Goulding and Beaman and Peter Olney, 
and laying the dust of pleading by certain sprinklings 
which Huntington Jackson, another ex-soldier, and 
I managed to contrive together. A little later in 
the day, in Bob Morse's office, I saw a real writ, 
acquired a practical conviction of the difference be- 
tween assumpsit and trover, and marvelled open- 
mouthed at the swift certainty with which a master 
of his business turned it off. 

Yesterday I was at the law school again, in the 
chair instead of on the benches, when my dear part- 
ner, Shattuck, came out and told me that in one hour 
the Governor would submit my name to the council 
for a judgeship, if notified of my assent. It was a 

* From Speeches (1913), Little, Brown & Co. 
244 



SPEECH AT BAR DINNER 245 

stroke of lightning which changed the whole course 
of my life. 

And the day before yesterday, gentlemen, was 
thirty-five years, and yesterday was more than eigh- 
teen years, ago. I have gone on feeling young, but 
I have noticed that I met fewer of the old to whom 
to show my deference, and recently I was startled 
by being told that ours is an old bench. Well, I 
accept the fact, although I find it hard to realize, 
and I ask myself, what is there to show for this half 
lifetime that has passed? I look into my book in 
which I keep a docket of the decisions of the full 
court which fall to me to write, and find about a 
thousand cases. A thousand cases, many of them 
upon trifling or transitory matters, to represent 
nearly half a lifetime! A thousand cases, when one 
would have liked to study to the bottom and to say 
his say on every question which the law ever has pre- 
sented, and then to go on and invent new problems 
which should be the test of doctrine, and then to 
generalize it all and write it in continuous, logical, 
philosophic exposition, setting forth the whole corpus 
with its roots in history and its justifications of ex- 
pedience real or supposed! 

Alas, gentlemen, that is life. I often imagine 
Shakespeare or Napoleon summing himself up and 
thinking: "Yes, I have written five thousand lines of 
solid gold and a good deal of padding I, who would 
have covered the milky way with words that out- 
shone the stars I" "Yes, I beat the Austrians in 
Italy and elsewhere: I made a few brilliant cam- 



246 COLLECTED LEGAL PAPERS 

paigns, and I ended in middle life in a cul-de-sac 
I, who had dreamed of a world monarchy and Asiatic 
power." We cannot live our dreams. We are lucky 
enough if we can give a sample of our best, and if 
in our hearts we can feel that it has been nobly done. 

Some changes come about in the process, changes 
not necessarily so much in the nature as in the 
emphasis of our interest. I do not mean in our wish 
to make a living and to succeed of course, we all 
want those things but I mean in our ulterior in- 
tellectual or spiritual interest, in the ideal part, with- 
out which we are but snails or tigers. 

One begins with a search for a general point of 
view. After a time he finds one, and then for a while 
he is absorbed in testing it, in trying to satisfy him- 
self whether it is true. But after many experiments 
or investigations all have come out one way, and his 
theory is confirmed and settled in his mind, he knows 
in advance that the next case will be but another 
verification, and the stimulus of anxious curiosity is 
gone. He realizes that his branch of knowledge only 
presents more illustrations of the universal principle; 
he sees it all as another case of the same old ennui, 
or the same sublime mystery for it does not matter 
what epithets you apply to the whole of things, they 
are merely judgments of yourself. At this stage the 
pleasure is no less, perhaps, but it is the pure pleasure 
of doing the work, irrespective of further aims, and 
when you reach that stage you reach, as it seems to 
me, the triune formula of the joy, the duty, and the 
end of life. 



SPEECH AT BAR DINNER 247 

It was of this that Malebranche was thinking when 
he said that, if God held in one hand truth, and in 
the other the pursuit of truth, he would say: "Lord, 
the truth is for thee alone; give me the pursuit. " 
The joy of life is to put out one's power in some 
natural and useful or harmless way. There is no 
other. And the real misery is not to do this. The 
hell of the old world's literature is to be taxed beyond 
one's powers. This country has expressed in story 
- I suppose because it has experienced it in life 
a deeper abyss, of intellectual asphyxia or vital ennui, 
when powers conscious of themselves are denied their 
chance. 

The rule of joy and the law of duty seem to me all 
one. I confess that altruistic and cynically selfish 
talk seem to me about equally unreal. With all 
humility, I think "Whatsoever thy hand findeth to 
do, do it with thy might" infinitely more important 
than the vain attempt to love one's neighbor as one's 
self. If you want to hit a bird on the wing, you 
must have all your will in a focus, you must not be 
thinking about yourself, and, equally, you must not 
be thinking about your neighbor; you must be living 
in your eye on that bird. Every achievement is a 
bird on the wing. 

The joy, the duty, and, I venture to add, the end 
of life. I speak only of this world, of course, and of 
the teachings of this world. I do not seek to trench 
upon the province of spiritual guides. But from the 
point of view of the world the end of life is life. 
Life is action, the use of one's powers. As to use 



24 8 COLLECTED LEGAL PAPERS 

them to their height is our joy and duty, so it is the 
one end the justifies itself. Until lately the best 
thing that I was able to think of in favor of civiliza- 
tion, apart from blind acceptance of the order of the 
universe, was that it made possible the artist, the 
poet, the philosopher, and the man of science. But 
I think that is not the greatest thing. Now I believe 
that the greatest thing is a matter that comes directly 
home to us all. When it is said that we are too much 
occupied with the means of living to live, I answer 
that the chief worth of civilization is just that it 
makes the means of living more complex; that it 
calls for great and combined intellectual efforts, 
instead of simple, uncoordinated ones, in order that 
the crowd may be fed and clothed and housed and 
moved from place to place. Because more complex 
and intense intellectual efforts mean a fuller and 
richer life. They mean more life. Life is an end in 
itself, and the only question as to whether it is worth 
living is whether you have enough of it. 

I will add but a word. We all are very near 
despair. The sheathing that floats us over its waves 
is compounded of hope, faith in the unexplainable 
worth and sure issue of effort, and the deep, sub-con- 
scious content which comes from the exercise of our 
powers. In the words of a touching negro song 

Sometimes I's up, sometimes Fs down, 
Sometimes I's almost to the groun 7 ; 

but these thoughts have carried me, as I hope they 
will cany the young men who hear me, through long 



SPEECH AT BAR DINNER 249 

years of doubt, self -distrust, and solitude. They do 
now, for, although it might seem that the day of 
trial was over, in fact it is renewed each day. The 
kindness which you have shown me makes me bold 
in happy moments to believe that the long and 
passionate struggle has not been quite in vain. 



MONTESQUIEU * 

is no new thing under the sun," It is the 
judgment of a man of the world, and from his point 
of view it is true enough. The things which he sees 
in one country he sees in another, and he is slightly 
bored from the beginning. But the judgment is 
quite untrue from the point of view of science or 
philosophy. From the time of Pericles to now, dur- 
ing the whole period that counts in the intellectual 
history of the race, the science or philosophy of one 
century has been different from that of the one 
before, and in some sense further along. By a corol- 
lary easy to work out, we have the paradox that the 
books which are always modern, the thoughts which 
are as stinging to-day as they were in their cool youth, 
are the books and thoughts of the men of the world. 
Ecclesiastes, Horace, and Rochefoucauld give us as 
much pleasure as they gave to Hebrew or Roman or 
the subject of Louis XIV. In this sense it is the 
second rate that lasts. But the greatest works of 
intellect soon lose all but their historic significance. 
The science of one generation is refuted or out- 
generalized by the science of the next; the philosophy 
of one century is taken up or transcended by the 
philosophy of a later one; and so Plato, St. Augus- 
tine, and Descartes, and we almost may say Kant and 

* Introdiicticm to a reprint of the Esprit des Lois. (1900.) 
250 



MONTESQUIEU 251 

Hegel, are not much more read than Hippocrates or 
Cuvier or Bichat. 

Montesquieu was a man of science and at the 
same time a man of the world. As a man of science 
he wrote an epoch-making book. And just because 
and in so far as his book was a work of science and 
epoch-making, it is as dead as the classics. The 
later investigations which it did so much to start 
have taken up what was true in it and have re- 
futed what needed refutation, and without the need 
of controversy they have killed many pale shoots 
of fancy and insufficient knowledge simply by letting 
in light and air. For a beginner to read Montes- 
quieu with the expectation that there he is to find 
his understanding of the laws of social being, would 
be as ingenuous as to read Plato at eighteen expect- 
ing to find in him the answers to the riddles of life 
when they begin to perplex and sadden the mind of 
youth. He would learn a good deal more from 
Lecky. Montesquieu is buried under his own tri- 
umphs, to use his own words with a different appli- 
cation. 

But Montesquieu also was a man of the world 
and a man of esprit . That wit which deals with the 
daily aspect of life and offers trenchant solutions in 
two or three lines is a dangerous gift. It hardly is 
compatible with great art, and Flaubert is not with- 
out reason when he rails at it in his letters. It is 
no less dangerous to great thinking, to that profound 
and sustained insight which distrusts the dilemma as 
an instrument of logic, and discerns that a thing may 



252 COLLECTED LEGAL PAPERS 

be neither A nor not A, but the perpendicular, or, 
more plainly, that the truth may escape from the 
limitations of a given plane of thought to a higher 
one. Montesquieu said that Voltaire had too much 
esprit to understand him. Nevertheless, Montes- 
quieu had enough of it to have sustained the Satur- 
day Review when Maine and Fitzjames Stephen or 
Venables were its contributors, and as a man of 
wit he still is fresh and pleasant reading. When one 
runs through the Lettres Persanes one feels as he 
does after reading Swift's Polite Conversation, struck 
with a wondering shame at the number of things he 
has been capable of feeling pleased with himself for 
saying, when they had been noted as familiar two 
hundred years before. He is in the realm of the ever 
old which also is the ever new, those middle axioms 
of experience which have been made from the begin- 
ing of society, but which give each generation a fresh 
pleasure as they are realized again in actual life. 
There is a good deal more than this, because Montes- 
quieu was a good deal more than a man of the 
world, but there is this also in which we escape from 
the preliminary dulness of things really great. 

We find the same thing in the Esprit des Lois, 
and one might read that work happily enough simply 
as literature. One may read it also as a first step 
in studies intended to be carried further and into later 
days. But to read it as it should be read, to appre- 
ciate the great and many-sided genius of the author 
and his place in the canonical succession of the high 
priests of thought, one must come back to it in the 



MONTESQUIEU 253 

Mness of knowledge and the ripeness of age. To 
read the great works of the past with intelligent 
appreciation, is one of the last achievements of a 
studious life. But I will postpone what more I 
have to say of this book until we come to it in 
following the course of the author's career. 

Charles de Secondat, Baron de la Brede, was born 
at the Chateau de la Brede, near Bordeaux, on Jan- 
uary 1 8, 1689. His family had gained distinction both 
by the sword and in the law. His father was a magis- 
trate, and intended that he should be one. His 
mother was pious, and no doubt hoped that he might 
be like her. Neither wish was entirely fulfilled. 

At the moment of his birth a beggar presented him- 
self at the chateau, and was retained that he might 
be god-father to the young noble, and so remind him 
all his life that the poor were his brothers. He was 
nursed by peasants, and he kept through life a 
touch of Gascon speech, and, the Frenchmen say, 
something of the Gascon in his style. His early 
education was by churchmen, but at twenty he 
showed the tendency of his mind by composing an 
essay to prove that the pagan did not deserve to be 
eternally damned. The essay has not been pre- 
served, but perhaps an echo of his reflections is to be 
found in the thirty-fifth of the Lettres Persanes, in 
which Usbek, who, not without dispute, has been 
taken for the author, asks the "sublime dervish" 
Gemchid whether he thinks that the Christians are 
to be damned forever for not having embraced the 
true religion of which they never have heard. 



254 COLLECTED LEGAL PAPERS 

He studied law. "When I left college," he said, 
"they put law books into my hands. I tried to find 
their inner meaning" (J'en cherchais V esprit). The 
Esprit des Lois was the outcome, but not the imme- 
diate outcome, of his studies. The immediate result 
was that, at twenty-five, on February 24, 1714, he 
was admitted to the Parlement de Bordeaux as con- 
seillen On July 13, 1716, he succeeded to the office 
(president a mortier) and fortune of an uncle, on 
condition of assuming the name of Montesquieu. 
Meantime he had married, and he had a son this same 
year, and later two daughters. As a magistrate 
he seems to have been not without weight. In 1722 
he was intrusted with the shaping of a remonstrance 
to the king against a tax on wines, which for the 
time was successful. As a husband he was not want- 
ing in decorum. But neither magistracy nor mar- 
riage seems to have filled his life. 

He made a reasonable amount of love in his day, 
I infer not wholly before 1715. Whether or not he 
would have said that the society of women makes us 
"subtle and insincere," he did say that it spoils our 
morals and forms our taste. I suspect also that it 
added a poignancy to his phrase when he came to 
write, as it certainly gave him a freedom and alert- 
ness of interest in dealing with matters of sex. He 
took Ms passions easily. As soon as he ceased to 
believe that a woman loved him, he broke with her 
at once, he says, and elsewhere he tells us in more 
general terms that he never had a sorrow which an 
hour's reading would not dispel. At times his de- 



MONTESQUIEU 255 

tachment seems to have been too visible, as one lady 
reproached him with writing his book in society. 
Perhaps it was timidity, which he says was a plague 
of his life. So much for his relations, domestic and 
otherwise, with women. As to the magistracy, he 
resigned his place in 1 72 6. He found procedure hard 
to master, and it disgusted him to see men upon 
whose talents he justly looked down excelling in a 
matter that was too much for him. 

About the same time that he succeeded his uncle 
he joined a society in Bordeaux, in which for a while 
he devoted himself to science. He made some experi- 
ments, wrote some scientific memoirs, planned a phys- 
ical history of the earth, and sent out circulars 
of inquiry in 1719, but happily it all came to nothing, 
and this failure, combined with the shortness of his 
outward and the reach of his inward sight, helped 
to fix his attention upon his kind. He had the "dis- 
ease of book-making," and as early as 1721 he 
published his Lettres Persanes. The putting of the 
criticism of his own times into the mouth of an 
intelligent foreigner, and all the Oriental coloring, 
seem a trifle faded nowadays. But these are merely 
the frame or excuse for a series of essays some- 
what like those in the nearly contemporary Spec- 
tator on social subjects and subjects of social in- 
terest, running all the way from God to the Fashions. 

In almost every letter there are things which have 
been quoted so often that one is afraid to repeat 
them. In one he makes a few reflections upon sui- 
cide that are hard to answer, and which had a prac- 



25 6 COLLECTED LEGAL PAPERS 

tical aim, in view of the monstrous condition o the 
law. In another he is equally outspoken with regard 
to divorce, and says, not without some truth, that 
wishing to tighten the knot the law has untied it, 
and instead of uniting hearts, as it proposed, has 
separated them forever. Before Adam Smith he re- 
marks the activity of dissenting sects, and he points 
out with unorthodox candor their service in reform- 
ing the abuses of the established faith. 

In the person of Usbek he says: "Everything inter- 
ests me, everything excites my wonder. I am like a 
child whose immature organs are keenly struck by 
the most insignificant objects." Montesquieu proves 
it in these letters. Alongside of such grave discus- 
sions as the foregoing he has portraits, or rather 
types, that still live. The parvenu tax farmer, the 
father confessor, the old soldier who can not hope 
for preferment "because we" (very sensibly) "believe 
that a man who has not the qualities of a general 
at thirty never will have them," the homme a bonnes 
fortunes who has hair, little wit, and so much imperti- 
nence, the poet (Montesquieu despised the poets, at 
least those whom he saw) the poet, with grimaces 
and language different from the others, who would 
stand a beating better than the least criticism, the 
grand seigneur who personates himself. "He took 
a pinch of snuff so haughtily, he wiped his nose so 
pitilessly, he spit with so much phlegm, he fondled his 
dogs in a way so insulting to men, that I could not 
weary of wondering." The decisionnaire: "In a 
quarter of an hour he decided three questions of 



MONTESQUIEU 257 

morals, four problems of history, and five points of 
physics. . . . They dropped the sciences and 
talked of the news of the day. ... I thought that 
I would catch him, and spoke of Persia. But I 
hardly had said four words when he contradicted me 
twice. ... Ah! ban Dieu! said I to myself, what 
sort of man is this? Soon he will know the streets 
of Ispahan better than L" 

The letter on fashion ought to be quoted entire. 
When he says in the next one that what is foreign 
always seems ridiculous to the French, of course he is 
only noticing an instance of the universal law, but he 
makes us remember that Little Pedlington is every- 
where, and that this day there is no more marked 
Little Pedlingtonian than the Parisian boulevardier 
man of letters. It is true that Montesquieu limits 
his remarks to trifles. They readily will admit that 
other people are wiser, he says, if you grant them 
that they are better dressed. His talk about the 
Spaniards is equally good. The Spaniards whom 
they do not burn, he says, seem so attached to the 
Inquisition that it would be ill-natured to deprive 
them of it. But at the end he gives them their 
revenge. He imagines a Spaniard in Paris and 
makes him say that they have a house there in 
which they shut up a few madmen in order to per- 
suade the world that the rest are not mad. After 
things of this sort, two pages further on we read that 
the most perfect government is that which attains 
its ends with the least cost, so that the one wMch 
leads men in the way most according to their Indl- 



258 COLLECTED LEGAL PAPERS 

nation is best. What have two hundred years 
added? What proximate test of excellence can be 
found except correspondence to the actual equi- 
librium of force in the community that is, conform- 
ity to the wishes of the dominant power? Of course, 
such conformity may lead to destruction, and it is 
desirable that the dominant power should be wise. 
But wise or not, the proximate test of a good govern- 
ment is that the dominant power has its way. 

There are considerations upon colonies, upon 
population, upon monarchy, a striking prophecy that 
the Protestant countries will grow richer and more 
powerful and the Catholic countries weaker. There 
is, in short, a scattering criticism of pretty nearly 
everything in the social order, of a sceptically radical 
kind, but always moderate and rational, with hints 
and germs of his future work, interspersed with many 
little sayings not too bright or good for human na- 
ture's daily food, and with some which are famous, 
such as, "It sometimes is necessary to change certain 
laws, but the case is rare, and when it occurs one 
should touch them only with a trembling hand"; or, 
"Nature always acts slowly and, so to speak, spar- 
ingly; her operations are never violent." This last 
is said by Sorel to be the whole philosophy of the 
Esprit des Lois, and suggests a more extensive phil- 
osophy still, which no doubt was more or less in the 
air, which found expression a little later in Linnaeus's 
Natura nan factt saltus, and which nowadays in its 
more developed form we call evolution. 

Hie Lettres Persanes came out anonymously, os- 



MONTESQUIEU 259 

tensibly from Amsterdam, when Montesquieu was 
little more than thirty, and ran through four editions 
in the first year. The name of the author became 
known to everybody. He went to Paris, and there 
frequented the society of men and women whose 
names to us of this country and time are but foam 
from the sea of oblivion, but who were the best of 
their day. There, to please the ladies, or a lady, 
he wrote in 1725 the Temple de Gmde and Cephise 
et V Amour, which need not delay us. He says that 
only well-curled and well-powdered heads will under- 
stand them. At the beginning of 1728 he was 
elected to the Academy, which he, like other French- 
men, had made sport of but desired to enter. He 
had been elected before, but had been refused by 
the king. This time he had better luck. Voltaire 
and D'Alembert tell a tale of how it was managed. 
Entrance to the Academy is apt to be an occasion 
for the display of malice on the one side or the other; 
the address of welcome twitted him with having no 
recognized works to justify the election, under the 
form of a compliment on the certainty that the pub- 
lic would give him the credit of dever anonymous 
ones. For this or other reasons he did not go much 
to the Academy, and he soon set out upon a tour of 
Europe. He went to Vienna, and there met the 
Prince Eugene. He applied for a post as a diplomat, 
and again, luddly for the world, he failed. He 
visited Hungary, then Venice, where he met the 
famous John Law and became a friend of Lord 
Chesterfield; then Switzerland and Holland by way 



260 COLLECTED LEGAL PAPERS 

of the Rhine. From Holland he went with Lord 
Chesterfield to England, where he remained for 
nearly two years, returning in August, 1731, to La 
Brede, his family, and his writing. 

In 1734 he published his Considerations sur les 
causes de la grandeur des Romains et de leur 
decadence. He was drawing nearer to his great 
work; from sporadic apergus he was turning to sys- 
tematic exposition. It often is said, and with a good 
deal of truth, that men reach their highest mark 
between thirty and forty. Perhaps the statement 
seems more significant than it really is, because men 
generally have settled down to their permanent occu- 
pation by thirty, and in the course of the next ten 
years are likely to have found such leading and domi- 
nant conceptions as they are going to find; the rest 
of life is working out details. Montesquieu and 
Kant either are exceptions to the rule or illustrate 
the qualification just suggested. In their earlier life 
as you look back at it you see the Critique and the 
Esprit des Lois coming, but the fruit did not ripen 
fully until they were in the neighborhood of sixty. 
In 1734 Montesquieu was already forty-five. 

Roman history has been rewritten since his day 
by Niebuhr and his successors. But Montesquieu 
gives us the key to his mode of thought and to all 
fruitful thought upon historic subjects when he says 
that "there are general causes, moral or physical, at 
work in every monarchy, which elevate and maintain 
it or work its downfall; all accidents are the result 
of causes; and if the chance of a battle that is, a 



MONTESQUIEU 261 

special cause has ruined a state, there was a 
general cause at work which made that state ready 
to perish by a single battle. In a word, the main 
current carries with it all the special accidents." 

Montesquieu the ladies' man, Montesquieu the 
student of science, Montesquieu the lover of travel 
both real and fictitious, Montesquieu the learned in 
the classics and admirer of that conventional an- 
tiquity that passed so long for the real thing in 
France all these Montesquieus unite in the Esprit 
des Lois, as is pointed out most happily by Faguet, 
whose many-sided and delicate appreciation of the 
author I read just as I was writing this sentence. 
The book, he says, is called Esprit des Lois; it should 
have been called simply Montesquieu. Perhaps the 
fact is due in part to the subject's not having become 
a specialty. In the same way Adam Smith's Wealth 
of Nations has many interesting and penetrating re- 
marks that, alas! hardly would be allowed in a mod- 
ern political economy, even if the writer had the 
wit to make them. At all events, after his Roman 
history, the rest of Montesquieu's life may be 
summed up as the production of this volume. In the 
preface he calls it the labor of twenty years. It 
appeared in 1748. When it was done his hair had 
whitened over the last books, and Ms eyes had grown 
dim. "It seems to me," he said, "that the light left 
to me is but the dawn of the day on which my eyes 
shall dose forever," He published a defence of the 
work in 1750, attended to the sale of wine from his 
vineyards, noticed with pleasure that the sale seemed 



262 COLLECTED LEGAL PAPERS 

to have been increased in England by the publication 
of his book, and died in Paris on February 10, 1755, 
watched, if not like Arthur by weeping queens, at 
least by the Duchess d'Aiguillon and a houseful of 
loving and admiring friends. According to Mauper- 
tuis, he was well proportioned, careless in dress, 
modest in demeanor, candid in speech, simple in 
Ms mode of life, and welcomed in society with uni- 
versal joy. The medallion gives him a distinguished 
face. 

It would be out of place to offer an analysis of a 
book which is before the reader, and it would take a 
larger book to contain all the thoughts which it sug- 
gests. The chapters on the feudal law are so far 
separable from the rest that it had been thought a 
mistake of Montesquieu to add them. The modern 
student naturally would turn to Roth or whatever 
still later man may displace Roth. With regard 
to the main body of the work, one might say that 
it expressed a theory of the continuity of the phe- 
nomenal universe at a time when, through no fault of 
the author, its facts were largely miraculous. He 
was not able to see history as an evolution, he looked 
at all events as if they were contemporaneous. 
Montesquieu's Rome was the Rome of fable un- 
critically accepted. His anthropology was anec- 
dotic. His notion of a democracy suggests a Latin 
town meeting rather than the later developements in 
the United States and France. He made the world 
realize the influence of the climate and physical en- 
vironment which in our day furnished the already 



MONTESQUIEU 263 

forgotten Buckle a suggestive chapter but had not 
the data to be more than a precursor. 

His England the England of the threefold divi- 
sion of power into legislative, executive and judicial 
was a fiction invented by him, a fiction which mis- 
led Blackstone and Delolme. Hear Bagehot in his 
work upon the subject: "The efficient secret of the 
English Constitution may be described as the close 
union, the nearly complete fusion of the executive 
and legislative powers." And again: "The Ameri- 
can Constitution was made upon a most careful argu- 
ment, and most of that argument assumes the king 
to be the administrator of the English Constitution, 
and an unhereditary substitute for him viz., a 
president to be peremptorily necessary. Living 
across the Atlantic, and misled by accepted doc- 
trines, the acute framers of the Federal Constitu- 
tion, even after the keenest attention, did not 
perceive the Prime Minister to be the principal execu- 
tive of the British Constitution, and the sovereign 
a cog in the mechanism." 

It is worth remarking that, notwithstanding his 
deep sense of the inevitableness of the workings of 
the world, Montesquieu had a possibly exaggerated 
belief in the power of legislation, and an equally 
strong conviction of the reality of abstract justice. 
But it is vain to attempt to criticise the book in detail. 
Indeed, it is more important to understand its rela- 
tion to what had been done before than to criticise. 
There is not space even to point out how many seeds 
it sowed. Montesquieu is a precursor, to repeat the 



264 COLLECTED LEGAL PAPERS 

word, in so many ways. He was a precursor of polit- 
ical economy. He was the precursor of Beccaria 
in the criminal law. He was the precursor of Burke 
when Burke seems a hundred years ahead of his time. 
The Frenchmen tell us that he was the precursor of 
Rousseau. He was an authority for the writers of 
The Federalist. He influenced, and to a great 
extent started scientific theory in its study of soci- 
eties, and he hardly less influenced practice in legis- 
lation, from Russia to the United States. His book 
had a dazzling success at the moment, and since then 
probably has done as much to remodel the world 
as any product of the eighteenth century, which 
burned so many forests and sowed so many fields. 

And this was the work of a lonely scholar sitting 
in a library. Like Descartes or Kant, he com- 
manded the future from his study more than 
Napoleon from his throne. At the same time he 
affects no august sovereignty, but even gives us one 
or two discreet personal touches full of a sort of 
pathetic charm the "Italiam! Italiam!" when the 
long day's work was done and the author saw his 
god before darkness closed upon him; the suppressed 
invocation at the beginning of Book XX; the proud 
epigraph, "Prolem sine matre creatam" ; and above 
all the preface, that immortal cheer to other lonely 
spirits. It is the great sigh of a great man when he 
has done a great thing. The last words of that are 
the words with which this introduction should end. 
"If this work meets with success, I shall owe it 
largely to the majesty of my subject. However, I 



MONTESQUIEU 265 

do not think that I have been wholly wanting in 
genius. When I have seen what so many great men 
in France, England, and Germany have written be- 
fore me, I have been lost in admiration, but I have 
not lost my courage. 'And I too am a painter/ I 
have said with Correggio." 



JOHN MARSHALL * 

IN ANSWER TO A MOTION THAT THE COURT ADJOURN, 

ON FEBRUARY 4, IQOI, THE ONE HUNDREDTH 

ANNIVERSARY OF THE DAY ON WHICH 

MARSHALL TOOK HIS SEAT AS 

CHIEF JUSTICE. 

As we walk down Court Street in the midst of a 
jostling crowd, intent like us upon to-day and its 
affairs, our eyes are like to fall upon the small, dark 
building that stands at the head of State Street, and, 
like an ominous reef, divides the stream of business 
in its course to the gray diffs that tower beyond. 
And, whoever we may be, we may chance to pause 
and forget our hurry for a moment, as we remember 
that the first waves that foretold the coming storm 
of the Revolution broke around that reef. But, if 
we are lawyers, our memories and our reverence grow 
more profound. In the Old State House, we re- 
member, James Otis argued the case of the writs of 
assistance, and in that argument laid one of the 
foundations for American constitutional law. Just as 
that little building is not diminished, but rather is 
enhanced and glorified, by the vast structures which 
somehow it turns into a background, so the begin- 

* From Speeches (1913), Little, Brown & Co. 
266 



JOHN MARSHALL 267 

nings of our national life, whether in battle or in law, 
lose none of their greatness by contrast with all the 
mighty things of later date, beside which, by every 
law of number and measure, they ought to seem so 
small. To us who took part in the Civil War, the 
greatest battle of the Revolution seems little more 
than a reconnoissance in force, and Lexington and 
Concord were mere skirmishes that would not find 
mention in the newspapers. Yet veterans who have 
known battle on a modern scale, are not less aware of 
the spiritual significance of those little fights, I ven- 
ture to say, than the enlightened children of com- 
merce who tell us that soon war is to be no more. 

If I were to think of John Marshall simply by num- 
ber and measure in the abstract, I might hesitate 
in my superlatives, just as I should hesitate over the 
battle of the Brandywine if I thought of it apart 
from its place in the line of historic cause. But 
such thinking is empty in the same proportion that 
it is abstract. It is most idle to take a man apart 
from the circumstances which, in fact, were his. 
To be sure, it is easier in fancy to separate a person 
from his riches than from Ms character. But it is 
just as futile. Remove a square inch of mucous 
membrane, and the tenor will sing no more. Re- 
move a little cube from the brain, and the orator 
will be speechless; or another, and the brave, gen- 
erous and profound spirit becomes a timid and queru- 
lous trifler. A great man represents a great ganglion 
in the nerves of society, or, to vary the figure, a 
strategic point in the campaign of history, and part 



268 COLLECTED LEGAL PAPERS 

of his greatness consists in his being there. I no 
more can separate John Marshall from the fortunate 
circumstance that the appointment of Chief Justice 
fell to John Adams, instead of to Jefferson a month 
later, and so gave it to a Federalist and loose con- 
structionist to start the working of the Constitution, 
than I can separate the black line through which he 
sent his electric fire at Fort Wagner from Colonel 
Shaw. When we celebrate Marshall we celebrate at 
the same time and indivisibly the inevitable fact that 
the oneness of the nation and the supremacy of the 
national Constitution were declared to govern the 
dealings of man with man by the judgments and 
decrees of the most august of courts. 

I do not mean, of course, that personal estimates 
are useless or teach us nothing. No doubt to-day 
there will be heard from able and competent persons 
such estimates of Marshall. But I will not trench 
upon their field of work. It would be out of place 
when I am called on only to express the answer to 
a motion addressed to the court and when many of 
those who are here are to listen this afternoon to 
the accomplished teacher who has had every occasion 
to make a personal study of the judge, and again this 
evening to a gentleman who shares by birth the 
traditions of the man. My own impressions are only 
those that I have gathered in the common course of 
legal education and practice. In them I am con- 
scious, perhaps, of some little revolt from our purely 
local or national estimates, and of a wish to see things 
and people judged by more cosmopolitan standards. 



JOHN MARSHALL 269 

A man is bound to be parochial in his practice to 
give his life, and if necessary his death, for the place 
where he has his roots. But his thinking should be 
cosmopolitan and detached. He should be able to 
criticise what he reveres and loves. 

The Federalist, when I read it many years ago, 
seemed to me a truly original and wonderful produc- 
tion for the time. I do not trust even that judgment 
unrevised when I remember that The Federalist and 
its authors struck a distinguished English friend of 
mine as finite; and I should feel a greater doubt 
whether, after Hamilton and the Constitution itself, 
Marshall's work proved more than a strong intellect, 
a good style, personal ascendancy in his court, cour- 
age, justice and the convictions of his party. My 
keenest interest is excited, not by what are called 
great questions and great cases, but by little deci- 
sions which the common run of selectors would pass 
by because they did not deal with the Constitution or 
a telephone company, yet which have in them the 
germ of some wider theory, and therefore of some 
profound interstitial change in the very tissue of the 
law. The men whom I should be tempted to com- 
memorate would be the originators of transforming 
thought. They often are half obscure, because what 
the world pays for is judgment, not the original mind. 

But what I have said does not mean that I shall 
join in this celebration or in granting the motion 
before the court in any half-hearted way. Not only 
do I recur to what I said in the beginning, and re- 
membering that you cannot separate a man from his 



270 COLLECTED LEGAL PAPERS 

place, remember also that there fell to Marshall per- 
haps the greatest place that ever was filled by a 
judge; but when I consider his might, his justice, and 
his wisdom, I do fully believe that if American law 
were to be represented by a single figure, sceptic and 
worshipper alike would agree without dispute that 
the figure could be one alone, and that one, John 
Marshall. 

A few words more and I have done. We live by 
. symbols, and what shall be symbolized by any image 
of the sight depends upon the mind of him who sees 
it. The setting aside of this day in honor of a great 
judge may stand to a Virginian for the glory of his 
glorious State; to a patriot for the fact that time has 
been on Marshall's side, and that the theory for 
which Hamilton argued, and he decided, and Webster 
spoke, and Grant fought, and Lincoln died, is now 
our corner-stone. To the more abstract but farther- 
reaching contemplation of the lawyer, it stands for 
the rise of a new body of jurisprudence, by which 
guiding principles are raised above the reach of 
statute and State, and judges are entrusted with a 
solemn and hitherto unheard-of authority and duty. 
To one who lives in what may seem to him a solitude 
of thought, this day as it marks the triumph of a 
man whom some Presidents of his time bade carry 
out his judgments as he could this day marks the 
fact that all thought is social, is on its way to action; 
that, to borrow the expression of a French writer, 
every idea tends to become first a catechism and then 
a code; and that according to its worth his unhelped 



JOHN MARSHALL 271 

meditation may one day mount a throne, and with- 
out armies, or even with them, may shoot across the 
world the electric despotism of an unresisted power. 
It is all a symbol, if you like, but so is the flag. The 
flag is but a bit of bunting to one who insists on 
prose. Yet, thanks to Marshall and to the men of 
his generation and for this above all we celebrate 
him and them its red is our lif eblood, its stars our 
world, its blue our heaven. It owns our land. At 
will it throws away our lives. 

The motion of the bar is granted, and the court 
will now adjourn. 



ADDRESS OF CHIEF JUSTICE HOLMES 

At the Dedication of the Northwestern University 
Law School Building, Chicago, October 20, 1902. 

MR. PRESIDENT AND GENTLEMEN: 

NATURE has but one judgment on wrong conduct 
if you can call that a judgment which seemingly 
has no reference to conduct as such the judgment 
of death. That is the judgment or the consequence 
which follows uneconomical expenditure if carried far 
enough. If you waste too much food you starve; 
too much fuel, you freeze; too much nerve tissue, 
you collapse. And so It might seem that the law 
of life is the law of the herd; that man should pro- 
duce food and raiment in order that he might produce 
yet other food and other raiment to the end of time. 
Yet who does not rebel at that conclusion? Accept- 
ing the premises, I nevertheless almost am prepared 
to say that every joy that gives to life its inspiration 
consists in an excursion toward death, although wisely 
stopping short of its goal. Art, philosophy, charity, 
the search for the north pole, the delirium of every 
great moment in man's experience all alike mean 
uneconomic expenditure mean waste mean a 
step toward death. The justification of art is not 
that it offers prizes to those who succeed in the 
economic struggle, to those who in an economic sense 
have produced the most, and that thus by indirection 

272 



NORTHWESTERN UNIVERSITY 273 

it increases the supply of wine and oil. The justi- 
fication is in art itself, whatever its economic effect. 
It gratifies an appetite which in some noble spirits is 
stronger than the appetite for food. The principle 
might be pressed even further and be found to fur- 
nish art with one of its laws. For it might be said, 
as I often have said, and as I have been gratified to 
find elaborated by that true poet Coventry Patmore, 
that one of the grounds of aesthetic pleasure is waste, 
I need not refer to Charles Lamb's well-known com- 
ments on the fallacy that enough is as good as a feast. 
Who does not know how his delight has been in- 
creased to find some treasure of carving upon a 
mediaeval cathedral in a back alley to see that 
the artist has been generous as well as great, and 
has not confined his best to the places where it could 
be seen to most advantage? Who does not recognize 
the superior charm of a square-hewed beam over a 
joist set on edge which would be enough for the 
work? To leave art, who does not feel that Nansen's 
account of his search for the pole rather loses than 
gains in ideal satisfaction by the pretense of a few 
trifling acquisitions for science? If I wished to make 
you smile I might even ask whether life did not gain 
an enrichment from neglected opportunities which 
would be missed in the snug filling out of every 
chance. But I am not here to press a paradox. I 
only mean to insist on the importance of the uneco- 
nomic to man as he actually feels to-day. You may 
philosophize about the honors of leisure as a sur- 
vival; you may, if you like, describe in the same way, 



374 COLLECTED LEGAL PAPERS 

as I have heard them described, the ideals which 
burn in the center of our hearts. None the less they 
are there. They are categorical imperatives. They 
hold their own against hunger and thirst; they scorn 
to be classed as mere indirect supports of our bodily 
needs, which rather they defy; and our friends the 
economists would do well to take account of them, 
as some great writers like M. Tarde would take 
account of them, if they are to deal with man as 
he is. No doubt already you have perceived the 
reason why I have insisted upon this double view 
of life. The special value of a university is that it 
moves in the twofold direction of man's desires which 
I have described. I have listened with interest to 
able business men when they argued and testified 
that a university training made men fitter to suc- 
ceed in their practical struggles. I am far from de- 
nying it. No doubt such a training gives men a 
larger mastery of the laws of nature under which 
they must work, a wider outlook over the world of 
science and of fact. If it could give to every student 
a scientific point of view, if education could make 
men realize that you can not produce something 
out of nothing and make them promptly detect the 
pretense of doing so with which at present the talk 
of every day is filled, I should think it had more than 
paid for itself. Still more should I think so if it 
could send men into the world with a good rudimen- 
tary knowledge of the laws of their environment. I 
can not believe that anything else would be so likely 
to secure prosperity as the universal acceptance of 



NORTHWESTERN UNIVERSITY 275 

scientific premises in every department of thought. 
But beside prosperity there is to be considered happi- 
ness, which is not the same thing. The chance of a 
university to enlarge men's power of happiness is at 
least not less than its chance to enlarge their capacity 
for gain. I own that with regard to this, as with re- 
gard to every other aspiration of man, the most 
important question seems to me to be, what are his 
inborn qualities? 

Mr. Ruskin's first rule for learning to draw, you 
will remember, was, Be born with genius. It is the 
first rule for everything else. If a man is adequate 
in native force, he probably will be happy in the 
deepest sense, whatever his fate. But we must not 
undervalue effort, even if it is the lesser half. And 
the opening which a university is sure to offer to all 
the idealizing tendencies which, I am not afraid to 
say, it ought to offer to the romantic side of life 
makes it above all other institutions the conservator 
of the vestal fire. Our tastes are finalities, and 
it has been recognized since the days of Rome that 
there is not much use in disputing about them. If 
some professor should proclaim that what he wanted 
was a strictly economic world, I should see no more 
use in debating with him than I do in arguing with 
those who despise the ideals which we owe to war. 
But most men at present are on the university side. 
They want to be told stories and to go to the play. 
They want to understand and, if they can, to paint 
pictures, and to write poems, whether the food prod- 
uct is greater in the long run because of them or not. 



276 COLLECTED LEGAL PAPERS 

They want to press philosophy to the uttermost edge 
of the articulate, and to try forever after some spirit- 
ual ray outside the spectrum that will bring a mes- 
sage to them from behind phenomena. They love 
the gallant adventure which yields no visible return, 
I think it the glory of that university which I know 
best, that under whatever reserves of manner they 
may hide it, its graduates have the romantic pas- 
sion in their hearts. 

But, gentlemen, there is one department of your 
institution to which I must be permitted specially 
to refer the department to which I am nearest by 
profession, and to which I owe the honor of being 
here. I mean, of course, the department of law. 
Let me say one word about that before I sit down. 
It was affirmed, I believe, by a man not without 
deserved honor in his generation the late Chief 
Justice Cooley that the law was and ought to be 
commonplace. No doubt the remark has its truth. 
It is better that the law should be commonplace than 
that it should be eccentric. No doubt, too, in any 
aspect it would seem commonplace to a mind that 
understood everything. But that is the weakness 
of all truth. If instead of the joy of eternal pursuit 
you imagine yourself to have mastered it as a com- 
plete whole, you would find yourself reduced to the 
alternative either of finding the remotest achieve- 
ment of quaternions or ontology the whole frame 
of the universe, in short a bore, or of dilating with 
undying joy over the proposition that twice two is 
four. It seems to me that for men as they are, the 



NORTHWESTERN UNIVERSITY 277 

law may keep its every-day character and yet be 
an object of understanding wonder and a field for 
the lightning of genius. One reason why it gives me 
pleasure to be here today and to express my good 
wishes for the future and my appreciation of the past 
of your law school, is that it is here and in places 
like it that such wonder is kindled and that from 
it may fly sparks that shall set free in some genius 
his explosive message. 

I am not dealing in generalities. I mean more than 
good will to a law school, simply because it is a 
law school. Indeed, I almost fear that the intellec- 
tual ferment of the better schools may be too potent 
an attraction to young men and seduce into the pro- 
fession many who would be better elsewhere. But 
I am thinking of this law school and no other. I 
never have had an opportunity to give public expres- 
sion to my sense of the value of the work of your 
accomplished dean. 1 I have come in for my share of 
criticism from him, as also I have had from him 
words which have given me new courage on a lonely 
road. But my appreciation of what I have seen from 
his hands is untouched by personal relations. It is 
solely because I think that it is the duty of those 
who know to recognize the unadvertised first rate, 
that I wish now to express my respect for his great 
learning and originality and for the volume and del- 
icacy of his production, which seem to me to de- 
serve more distinct and public notice than, so far 
as I am aware, they have received. I feel quite sure, 

1 Professor John H. Wigmore. 



278 COLLECTED LEGAL PAPERS 

from his printed work, that his teaching will satisfy 
the two-fold desire of man; that it will be enlightened 
with intelligent economic views and give men what 
they want to know when they go out to fight, but 
that also it will send them forth with a pennon as 
well as with a sword, to keep before their eyes in 
the long battle the little flutter that means ideals, 
honor, yes, even romance, in all the dull details. 



ECONOMIC ELEMENTS * 

I ENTERTAIN some opinions concerning the issues 
raised by your questions, and though not strictly 
responsive, I will state them. 

The real problem is not who owns, but who con- 
sumes, the annual product. The identification of 
these two very different questions is the source of 
many fallacies, and misleads many workingmen. 
The real evil of fifty-thousand-dollar balls and other 
manifestations of private splendor is that they tend 
to confirm this confusion in the minds of the ignorant 
by an appeal to their imagination, and make them 
think that the Vanderbilts and Rockefellers swallow 
their incomes like Cleopatra's dissolved pearl. The 
same conception is at the bottom of Henry George's 
Progress and Poverty. He thinks he has finished 
the discussion when he shows the tendency of wealth 
to be owned by the landlords. He does not consider 
what the landlords do with it. 

I conceive that economically it does not matter 
whether you call Rockefeller or the United States 
owner of all the wheat in the United States, if that 
wheat is annually consumed by the body of the 
people; except that Rockefeller, under the illusion 
of self-seeking or in the conscious pursuit of power, 

* A letter written in response to questions and not intended for 
print, but reprinted here, as it was published in a magazine (1904). 

279 



2 8o COLLECTED LEGAL PAPERS 

will be likely to bring to bear a more poignant 
scrutiny of the future in order to get a greater return 
for the next year. 

If then, as I believe, the ability of the ablest men 
under the present regime is directed to getting the 
largest markets and the largest returns, such ability 
is directed to the economically desirable end. 

I have vainly urged our various statisticians to 
exhibit in the well-known form the proportions of 
the products consumed by the many and those con- 
sumed by the few, expressed in labor hours or in any 
other convenient way. This would show whether 
private ownership was abused for the production of 
an undue proportion of luxuries for the few. I do 
not believe the luxuries would be one per cent. 

It follows from what I have said that the objec- 
tions to unlimited private ownership are sentimental 
or political, not economic. Of course, as the size 
of a private fortune increases, the interest of the 
public in the administration of it increases. If a 
man owned one-half of the wheat in the country and 
announced his intention to burn it, such abuse of 
ownership would not be permitted. The crowd 
would kill him sooner than stand it. 

But it seems to me that if every desirable object 
were in the hands of a monopolist, intent on getting 
all he could for it (subject to the limitation that it 
must be consumed, and that it might not be wantonly 
destroyed, as, of course, it would not be), the value 
of the several objects would be settled by the in- 
tensity of the desires for them respectively, and they 



ECONOMIC ELEMENTS 281 

would be consumed by those who were able to get 
them and that would be the ideal result. 

The first question put,* if I may be permitted to 
say so, seems to me rather fanciful. I see no way of 
answering it intelligently, and if I am right, it appears 
to imply an acceptance of what I have already tried 
to show to be a fallacy or confusion. 

So far as I can answer it, what I should say would 
be this: All that any man contributes to the world 
is the intelligence which directs a change in the 
place of matter. A man does not create the thing 
he handles or the force he exerts. The force could 
be got cheaper if the directing intelligence were not 
needed. The whole progress of the world in a ma- 
terial way is to put the need of intelligence further 
back. It is obvious that the intelligence of an archi- 
tect contributes more to the change of form which 
takes place in a house than that of all the laboring 
hands. How can any one measure the scope and 
value of remote causes of change? How can I com- 
pare the present effect on the lives of men of the 
speculations of Kant and of the empire of Napoleon? 
I should not think it absurd to assert that the former 
counted for the more, though, of course, it is impos- 
sible to prove it. My practical answer is that a 
great fortune does not mean a corresponding con- 
sumption, but a power of command; that some one 
must exercise that command, and that I know of no 
way of finding the fit man so good as the fact of 
winning it in the competition of the market. 

* Whether a man can render services entitling him to a fortune as 
great as some of ours in America. 



282 COLLECTED LEGAL PAPERS 

I already have intimated my opinion that the 
owner of a great fortune has public functions, and 
therefore, subject to legal questions which I am not 
considering, should be subject to some negative 
restraint. Among others, I should like to see him 
prohibited from giving great sums to charities which 
could not be clearly justified as long-sighted public 
investments. 

The only other question on which I desire to say a 
word is the nature of taxes in this connection. Taxes, 
when thought out in things and results, mean an 
abstraction of a part of the annual product for gov- 
ernment purposes, and cannot mean anything else. 
Whatever form they take in their imposition they 
must be borne by the consumer, that is, mainly by 
the working-men and fighting-men of the community. 
It is well that they should have this fact brought 
home to them, and not too much disguised by the 
form in which the taxes are imposed. 



ON K W. MAITLAND'S DEATH* 

ONE is almost ashamed to praise a dead master 
for what he did in a field where he was acknowledged 
to be supreme. When his work is finished it is too 
late for praise to give the encouragement which all 
need, and of which the successful get too little. 
Still, there is a pleasure in bearing one's testimony 
even at that late time, and thus in justifying the 
imagination of posthumous power on which all ideal- 
ists and men not seeking the immediate rewards of 
success must live. That imagination, if Mr. Mait- 
land was not, as I fear, too modest to get much joy 
from it, will be realized, I am sure. His profound 
knowledge of the sources of English law equipped 
him, as perhaps no other was equipped, to illustrate 
and explain the present. His knowledge was only a 
tool to his good sense. His good sense and insight 
were illuminated and made vivid by his power of 
statement and gift of narrative, so that any reason- 
ably prepared reader of his writings, even those deal- 
ing with what one would have expected to be dry 
details, is sure to become interested, absorbed, and 
charmed. His last work, the Life of Sir Leslie 
Stephen, was a no less successful excursion into new 
fields, and showed the same gifts, coupled with an 

* Law Quarterly Review (1907). 
283 



284 COLLECTED LEGAL PAPERS 

unconscious spirituality, which did not surprise, but 
which found freer scope for expression there. To 
elaborate an estimate of Mr. Maitland's achieve- 
ments would require time which my occupations do 
not permit me to give. But I would not willingly 
miss the chance to say what I believe about him, and 
to lay a wreath, if only of dry leaves, upon his grave. 



HOLDSWORTH'S ENGLISH LAW* 

THE study of English law has been slow to feel 
the impulse of science. But during the last thirty 
years, alongside of the practitioners to whom the law 
is a ragbag from which they pick out the piece and 
color that they want, there have been some students 
who have striven to make their knowledge organic. 
A brilliant result of that effort was Pollock and Mait- 
land's history. Mr. Holdsworth is giving us another. 
The first dealt mainly with the embryology of the sub- 
ject. The present work intends to deal with it in its 
maturity as well; and the two volumes just published 
trace its development through the Year Books to the 
point where we begin to recognize its adult form. A 
development is hard to describe. Mr. Holdsworth is 
to be complimented on the skill with which he has 
done it, although it would be difficult to give an ac- 
count of his book, precisely because of his skill. One 
is made to feel the complex antecedents Saxon tra- 
dition, Norman practice, the Roman law, the charac- 
ter of kings, the rise of Parliament, the varying 
economic needs and aims out of which the plant 
has grown, and one is made to see the growth. The 
reading leaves the conviction that one has received 

* A History of English Law. By W. S. Holdsworth, D.C.L. 
London: Methuen & Co., 1009. 8vo. Vol. II., xxxi, and 572 pp.; VoL 
HI., xxxviii, and 532 pp. Law Quarterly Review (1909). 



286 COLLECTED LEGAL PAPERS 

the most important of object lessons in the birth and 
life of ideas. The difficulty in remembering the 
details is the difficulty of marking the steps of an 
organic process. One sees that the embryo has taken 
form, gained size and coherence, more readily than 
one marks the moments of the change. 

The line between antiquarianism and knowledge of 
practical importance is kept with tact. Enough is 
told to gratify disinterested philosophic curiosity, yet 
not more than should be read by any one who desires 
to understand his art. No doubt Mr. Holdsworth is 
right in saying that "We cannot date the beginnings 
of the common law much earlier than the first half 
of the twelfth century." For that reason he properly 
does not spend much time on what he calls Anglo- 
Saxon antiquities, but what he says tells, and makes 
a proper beginning. The Church and the Roman law 
are other secondary influences, and those again are 
delicately and judiciously expounded. They are 
shown strengthening the royal power; impelling the 
first attempt at systematizing the new corpus that 
is to be; tending to qualify the old principle of 
liability (stated somewhat strongly perhaps in the 
proposition that a man acted at his peril); intro- 
ducing the last will and also the book for land grants, 
which fostered free alienation; suggesting new reme- 
dies and the exceptio in pleading; and in short, in 
various ways by their foreign atmosphere forcing the 
growth of the native. plant, especially through their 
influence on the King's Court. Much, perhaps most, 
of what we are told has been told before, and the 



HOLDSWORTH'S ENGLISH LAW 287 

author is frank in his reference to previous work, but 
it is told here in continuous form, with proportion, 
and so as to bring out the story of the birth and life 
of the common law. 

Attention has been called before now to the strug- 
gle for life carried on among ideas; to the result that 
some perish and others put on the livery of the con- 
queror; and to the fact that law only ends with a 
theory, but begins with a concrete case. But so far 
as I know these considerations have not been much 
attended to heretofore. Mr. Holdsworth illustrates 
them with more or less definite reference to this mode 
of approach. A slight example is that twenty-one, 
the time of coming of age for the knight, prevails over 
fifteen, the time for the socman. But the best in- 
stance is that of contract. We are shown how there 
are brought under that head matters that earlier were 
thought of in terms of grant, or like bailment formed 
a head by themselves. The surety, from a hostage, 
becomes a covenantor. We are given many illus- 
trations of the persistence of the fides facta and the 
oath as older competitors of the real and formal con- 
tracts that finally got the power. Ecclesiastical 
penalties for perjury in the breach of a promissory 
oath continue to a late period, 1 and although the 
opinion has been controverted, I think that there are 
signs that ecclesiastical chancellors hesitated before 
they denied a remedy for breach of faith. 

1 In Chaucer's Frere's Tale the Archdeacon "dide execucioun In 
punisshinge of ... diffamacioun . . . and of testanientSj Of coa- 
tractes, and of lakke of sacraments/' etc 



288 COLLECTED LEGAL PAPERS 

While I am speaking of contract I may add that 
the progress from tort to assumpsit seems to me bet- 
ter told than it has been before. Perhaps there is 
some perpetuation of what seems to me the con- 
fusion between the fraud that is wrought if a man 
keeps an executed consideration and will not perform 
his promise, and the misfortune that may be caused 
by not keeping a promise for which no consideration 
has been given. The very meaning of the doctrine 
of consideration is that if a man relies upon a promise 
made without it, he does so at his peril. Unless 
action on the faith of the promise is the conventional 
inducement for the promise, it has no effect. By 
conventional inducement I mean, of course, that 
which is contemplated, as the ground for the promise, 
by the bargain, whatever may be the motive in fact. 
Unless my memory deceives me, the false doctrine 
sometimes has been treated as if it were the main 
ground out of which assumpsit grew. 

If the development of ideas and their struggle 
for life are the interests of the day, the interest of the 
future, the final and most important question in the 
law is that of their worth. I mean their worth in 
a more far-reaching sense than that of expressing 
the de facto will of the community for the time. On 
this as yet no one has much to say. To answer it we 
should have in the first place to establish the ideals 
upon which our judgments of worth depend; and the 
statement of such ideals by different classes would 
differ, at least in form. But suppose that we had 
agreed that the end of law was, for instance, the sur- 



HOLDSWORTH'S ENGLISH LAW 289 

vival of a certain type of man, still we should have 
made very little way toward the founding of a scien- 
tific code. Statistics would leave the effect of the 
criminal law open to doubt. Who can prove that the 
doctrine of master and servant, or the theory of con- 
sideration, helps to attain the ideal assumed? The 
attitude of the State toward marriage and divorce is 
governed more by church and tradition than by facts. 
Wherever we turn we find that what are called good 
laws are apt to be called so because men see- that 
they promote a result that they fancy desirable, and 
do not see the bill that has to be paid in reactions 
that are relatively obscure. One fancies that one 
could invent a different code under which men would 
have been as well off as they are now, if they had 
happened to adopt it. But that if is a very great 
one. The tree has grown as we know it. The prac- 
tical question is what is to be the next organic step. 
No doubt the history of the law encourages scepti- 
cism when one sees how a rule or a doctrine has 
grown up, or when one notices the naivete with 
which social prejudices are taken for eternal prin- 
ciples. But it also leads to an unconvinced con- 
servatism. For it points out that almost the only 
thing that can be assumed as certainly to be wished is 
that men should know the rules by which the game 
will be played. Doubt as to the value of some of 
those rules is no sufficient reason why they should not 
be followed by the courts. Legislation gives notice 
at least if it makes a change. And after all, those of 
us who believe with Mr. Lester Ward, the sociologist, 



290 COLLECTED LEGAL PAPERS 

in the superiority of the artificial to the natural, may 
see in what has been done some ground for believing 
that mankind yet may take its own destiny con- 
sciously and intelligently in hand. 

Mr. Holdsworth is telling us a profoundly interest- 
ing story. It is one of the most important chapters 
in the greatest human document the tale of what 
men have most believed and most wanted. It is told 
with learning and scientific instinct, and the book 
is to be recommended equally to philosophers who 
can understand it and to practical students of the 
law. Readers of M. Tarde will see that author's 
laws of imitation illustrated by the most striking 
example, and if they doubt how far it can be said 
that the principles of any system are eternal, will 
realize that imitation of the past, until we have 
a clear reason for change, no more needs justification 
than appetite. It is a form of the inevitable to be 
accepted until we have a clear vision of what differ- 
ent thing we want. 



LAW AND THE COURT 

SPEECH AT A DINNER OF THE HARVARD LAW SCHOOL 

ASSOCIATION OF NEW YORK ON FEBRUARY 

15, 1913 * 

MR. CHAIRMAN AND GENTLEMEN: 

VANITY is the most philosophical of those feelings 
that we are taught to despise. For vanity recognizes 
that if a man is in a minority of one we lock him up, 
and therefore longs for an assurance from others 
that one's work has not been in vain. If a man's 
ambition is the thirst for a power that comes not from 
office but from within, he never can be sure that any 
happiness is not a fool's paradise he never can be 
sure that he sits on that other bench reserved for the 
masters of those who know. Then too, at least 
until one draws near to seventy, one is less likely to 
hear the trumpets than the rolling fire of the front. 
I have passed that age, but I still am on the firing 
line, and it is only in rare moments like this that 
there comes a pause and for half an hour one feels 
a trembling hope. They are the rewards of a life- 
time's work. 

But let me turn to more palpable realities to 
that other visible Court to which for ten now ac- 
complished years it has been my opportunity to be- 

* From Speeches (1913), Little, Brown & Co. 
291 



292 COLLECTED LEGAL PAPERS 

long. We are very quiet there, but it is the quiet of 
a storm centre, as we all know. Science has taught 
the world scepticism and has made it legitimate to 
put everything to the test of proof. Many beauti- 
ful and noble reverences are impaired, but in these 
days no one can complain if any institution, system, 
or belief is called on to justify its continuance in life. 
Of course we are not excepted and have not escaped. 
Doubts are expressed that go to our very being. 
Not only are we told that when Marshall pronounced 
an Act of Congress unconstitutional he usurped a 
power that the Constitution did not give, but we are 
told that we are the representatives of a class a 
tool of the money power. I get letters, not always 
anonymous, intimating that we are corrupt. Well, 
gentlemen, I admit that it makes my heart ache. It 
is very painful, when one spends all the energies of 
one's soul in trying to do good work, with no thought 
but that of solving a problem according to the rules 
by which one is bound, to know that many see sinister 
motives and would be glad of evidence that one was 
consciously bad. But we must take such things 
philosophically and try to see what we can learn from 
hatred and distrust and whether behind them there 
may not be some germ of inarticulate truth. 

The attacks upon the Court are merely an expres- 
sion of the unrest that seems to wonder vaguely 
whether law and order pay. When the ignorant are 
taught to doubt they do not know what they safely 
may believe. And it seems to me that at this time 
we need education in the obvious more than investi- 



LAW AND THE COURT 293 

gation of the obscure. I do not see so much imme- 
diate use in committees on the high cost of living 
and inquiries how far it is due to the increased pro- 
duction of gold, how far to the narrowing of cattle 
ranges and the growth of population, how far to 
the bugaboo, as I do in bringing home to people a 
few social and economic truths. Most men. think 
dramatically, not quantitatively, a fact that the rich 
would be wise to remember more than they do. We 
are apt to contrast the palace with the hovel, the 
dinner at Sherry's with the working man's pail, and 
never ask how much or realize how little is withdrawn 
to make the prizes of success (subordinate prizes 
since the only prize much cared for by the powerful 
is power. The prize of the general is not a bigger 
tent, but command). We are apt to think of owner- 
ship as a terminus, not as a gateway, and not to 
realize that except the tax levied for personal con- 
sumption large ownership means investment, and 
investment means the direction of labor towards the 
production of the greatest returns returns that so 
far as they are great show by that very fact that they 
are consumed by the many, not alone by the few. 
If I may ride a hobby for an instant, I should say 
we need to think things instead of words to drop 
ownership, money, etc., and to think of the stream 
of products; of wheat and cloth and railway travel. 
When we do, it is obvious that the many consume 
them; that they now as truly have substantially all 
there is, as if the title were in the United States; that 
the great body of property is socially administered 



294 COLLECTED LEGAL PAPERS 

now, and that the function of private ownership is 
to divine in advance the equilibrium of social desires 
which socialism equally would have to divine, but 
which, under the illusion of self-seeking, is more 
poignantly and shrewdly foreseen. 

I should like to see it brought home to the public 
that the question of fair prices is due to the fact that 
none of us can have as much as we want of all the 
things we want; that as less will be produced than the 
public wants, the question is how much of each prod- 
uct it will have and how much go without; that thus 
the final competition is between the objects of desire, 
and therefore between the producers of those ob- 
jects; that when we oppose labor and capital, labor 
means the group that is selling its product and capital 
all the other groups that are .buying it. The hated 
capitalist is simply the mediator, the prophet, the 
adjuster according to his divination of the future 
desire. If you could get that believed, the body of 
the people would have no doubt as to the worth of 
law. 

That is my outside thought on the present dis- 
contents. As to the truth embodied in them, in part 
it cannot be helped. It cannot be helped, it is as it 
should be, that the law is behind the times. I told a 
labor leader once that what they asked was favor, 
and if a decision was against them they called it 
wicked. The same might be said of their opponents. 
It means that the law is growing. As law embodies 
beliefs that have triumphed in the battle of ideas and 
then have translated themselves into action, while 



LAW AND THE COURT 295 

there still is doubt, while opposite convictions still 
keep a battle front against each other, the time for 
law has not come; the notion destined to prevail is 
not yet entitled to the field. It is a misfortune if 
a judge reads his conscious or unconscious sympathy 
with one side or the other prematurely into the law, 
and forgets that what seem to him to be first prin- 
ciples are believed by half his fellow men to be wrong. 
I think that we have suffered from this misfortune, in 
State courts at least, and that this is another and 
very important truth to be extracted from the popu- 
lar discontent. When twenty years ago a vague 
terror went over the earth and the word socialism 
began to be heard, I thought and still think that fear 
was translated into doctrines that had no proper place 
in the Constitution or the common law. Judges are 
apt to be naif, simple-minded men, and they need 
something of Mephistopheles. We too need educa- 
tion in the obvious to learn to transcend our own 
convictions and to leave room for much that we hold 
dear to be done away with short of revolution by the 
orderly change of law. 

I have no belief in panaceas and almost none in 
sudden ruin. I believe with Montesquieu that if 
the chance of a battle I may add, the passage of 
a law has ruined a state, there was a general cause 
at work that made the state ready to perish by a 
single battle or a law. Hence I am not much inter- 
ested one way or the other in the nostrums now so 
strenuously urged. I do not think the United 
States would come to an end if we lost our power 



296 COLLECTED LEGAL PAPERS 

to declare an Act of Congress void. I do think the 
Union would be imperiled if we could not make that 
declaration as to the laws of the several States. For 
one in my place sees how often a local policy pre- 
vails with those who are not trained to national views 
and how often action is taken that embodies what the 
Commerce Clause was meant to end. But I am not 
aware that there is any serious desire to limit the 
Court's power in this regard. For most of the things 
that properly can be called evils in the present state 
of the law I think the main remedy, as for the evils 
of public opinion, is for us to grow more civilized. 

If I am right it will be a slow business for our 
people to reach rational views, assuming that we are 
allowed to work peaceably to that end. But as I 
grow older I grow calm. If I feel what are perhaps 
an old man's apprehensions, that competition from 
new races will cut deeper than working men's dis- 
putes and will test whether we can hang together and 
can fight; if I fear that we are running through the 
world's resources at a pace that we cannot keep; 
I do not lose my hopes. I do not pin my dreams 
for the future to my country or even to my race. 
I think it probable that civilization somehow will last 
as long as I care to look ahead perhaps with 
smaller numbers, but perhaps also bred to greatness 
and splendor by science. I think it not improbable 
that man, like the grub that prepares a chamber for 
the winged thing it never has seen but is to be that 
man may have cosmic destinies that he does not 
understand. And so beyond the vision of battling 



LAW AND THE COURT 297 

races and an impoverished earth I catch a dreaming 
glimpse of peace. 

The other day my dream was pictured to my mind. 
It was evening. I was walking homeward on Penn- 
sylvania Avenue near the Treasury, and as I looked 
beyond Sherman's Statue to the west the sky was 
aflame with scarlet and crimson from the setting sun. 
But, like the note of downfall in Wagner's opera, 
below the sky line there came from little globes the 
pallid discord of the electric lights. And I thought 
to myself the Gotterdammerung will end, and from 
those globes clustered like evil eggs will come the 
new masters of the sky. It is like the time in which 
we live. But then I remembered the faith that I 
partly have expressed, faith in a universe not meas- 
ured by our fears, a universe that has thought and 
more than thought inside of it, and as I gazed, after 
the sunset and above the electric lights there shone 
the stars. 



INTRODUCTION TO THE GENERAL 
SURVEY 

BY EUROPEAN AUTHORS IN THE CONTINENTAL 
LEGAL HISTORICAL SERIES* 

THE authors whose writings are offered in this 
volume and Series do not need introduction. They 
introduce the man who has the honor for a moment 
to associate his name with theirs. But a few words 
from a veteran may catch the attention of those who 
still are in the school of the soldier and have not seen 
their first fight. 

The philosophers teach us that an idea is the first 
step toward an act. Beliefs, so far as they bear upon 
the attainment of a wish (as most beliefs do), lead in 
the first place to a social attitude, and later to com- 
bined social action, that is, to law. Hence, ever since 
it has existed, the law expressed what men most 
strongly have believed and desired. And, as the be- 
liefs and desires of the Western world have changed 
and developed a good deal since the days of the 
Twelve Tables and the Law of the Salian Franks, 
I thought it dangerously near a platitude to say, a 
dozen years ago, that the law might be regarded as a 
great anthropological document. But, as a gentleman 
prominent at the bar of one of the States professed 

* Little, Brown & Co., Boston. 1913. 
498 



INTRODUCTION TO GENERAL SURVEY 299 

difficulty In understanding what I meant, it is evident 
that the rudiments need eternal repetition. Any man 
who is interested in ideas needs only the suggestion 
that I have made to realize that the history of the 
law is the embryology of a most important set of 
ideas, and perhaps more than any other history tells 
the story of a race. 

The trouble with general or literary historical 
works is that they deal with premises or conclusions 
that are both unqualified. We readily admit their 
assumption that such and such a previous fact tended 
to produce such and such a later one; but how much 
of the first would be necessary to produce how much 
of the last, and how much there actually was of either, 
we are not told. On the other hand, in the history of 
philosophy and economics we can say with more 
confidence that we trace cause and effect. The one 
shows the inward bond between the successive stages 
of the thought of man; the other the sequence of 
outward events that have governed his action and 
(some believe) really have determined his thought. 
At all events the latter fits the former as the outside 
of a cathedral fits the inside, although there are 
gargoyles and Mephistopheles without and angels and 
saints within. 

There is no place for the history of law in this 
metaphor; but, in plain prose, it is midway between 
the other two. As we follow it down from century to 
century, we see logic at work attempting to develop 
the concrete cases given in experience into universal 
rules, and the struggle for life between the attempted 



300 COLLECTED LEGAL PAPERS 

generalizations and other competing forms. We 
watch the metamorphosis of the simple into the com- 
plex. We see changes of environment producing 
new institutions, and new taking the place of old 
beliefs and wants. We observe the illustrations, as 
striking here as in poetry or music, of the universal 
change of emphasis that each century brings along. 
An argument that would have prevailed in Plowden's 
time, and perhaps, would have raised a difficulty to 
be got rid of in Lord Ellenborough's, now would be 
answered only with a smile. 

The most obvious moral of what I have said is 
that the law will furnish philosophical food to philo- 
sophical minds. The surgeon of my regiment in the 
War of Secession used to divide the world into ex- 
ternal and internal men. The distinction is as old as 
Plato. For I take it that what makes the Banquet 
immortal is not the divine gossip about Aristophanes 
and Alcibiades and Socrates, but that it and some of 
the Dialogues are the first articulate expression that 
has come down to us of what internal men believe, 
that ideas are more interesting than things. To the 
internal men, I need say no more to recommend the 
theme of this and the following volumes. But the 
profit is not confined to them. When a man has a 
working knowledge of his business, he can spend his 
leisure better than in reading all the reported cases 
he has time for. They are apt to be only the small 
change of legal thought. They represent the compro- 
mise of the moment between tradition and precedent 
on the one side and the free conception of the desir- 



INTRODUCTION TO GENERAL SURVEY 301 

able on the other. It is worth while, even with the 
most mundane ideals, to get as big a grasp of one's 
subject as one can. And therefore it is worth while 
to do what we can to enlighten our notions of the de- 
sirable and to understand the precedents by which we 
are constrained. The history of the law stands along- 
side of sociology and economics as a necessary tool if 
one is to practise law in a large way. 

If what I have said is granted, not much argument 
is needed to show that a survey of the general devel- 
opment of Continental law is necessary to understand 
our own. The relationship is too well established to 
need new proofs, although I believe that there 
still are standard treatises that ascribe trusts to 
Rome and ignore the Salman. Indeed, I am not sure 
that the best way of proving the need of this Series 
would not be to present a series of Elegant Extracts 
from text-books and decisions. 

I can but envy the felicity of the generation to 
whom it is made so easy to see their subject as a 
whole. When I began, the law presented itself as 
a ragbag of details. The best approach that I found 
to general views on the historical side was the first 
volume of Spence's Equitable Jurisdiction, and, on 
the practical, Walker's American Law. The only 
philosophy within reach was Austin's Jurisprudence. 
It was not without anguish that one asked oneself 
whether the subject was worthy of the interest of an 
intelligent man. One saw people whom one respected 
and admired leaving the study because they thought 
it narrowed the mind; for which they had the author- 



3 02 COLLECTED LEGAL PAPERS 

ity of Burke. It required blind faith faith that 
could not yet find the formula of justification for 
itself. The works of foreign scholarship were then 
inaccessible. One had to spend long days of groping, 
with the inward fear that if one only knew where to 
look, one would find that one's difficulties and ques- 
tions were fifty years behind the times. Now, a man 
can start with the knowledge that he starts fair 
that the best results of Europe, as well as of this 
country and England, are before him. And those 
results are so illuminating that diligence alone is 
enough to give him an understanding of how the law 
came to be what it is, of its broadest generalizations, 
and (so far as any one yet can state them) of the 
reasons to be offered for continuing it in its present 
form or for desiring a change. 
WASHINGTON, B.C., November 28, 1911. 



IDEALS AND DOUBTS* 

FOR the last thirty years we have been preoccu- 
pied with the embryology of legal ideas; and explana- 
tions, which, when I was in college, meant a refer- 
ence to final causes, later came to mean tracing origin 
and growth. But fashion is as potent in the intellec- 
tual world as elsewhere, and there are signs of an 
inevitable reaction. The reaction, if there is one, 
seems to me an advance, for it is toward the ultimate 
question of worth. That is the text of an excellent 
article, "History versus Value," by Morris R. Cohen 
in the Journal of Philosophy, Psychology and Scien- 
tific Methods, and although perhaps rather in the 
form of conservation than of advance, of Del Vec- 
chio's Formal Bases of Law in the Modern Legal 
Philosophical Series. To show that it has my sym- 
pathy I may refer to the Law Quarterly Review* 
But perhaps it will not be out of place to express the 
caution with which I am compelled to approach any 
general recension from which the young hope so 
much. 

The first inquiry is for the criterion. If I may 
do Del Vecchio the wrong of summing up in a sen- 
tence or two what from a hasty reading I gather to 
be his mode of reaching one, it is that of a Neo-Kan- 

* Illinois Law Review, Vol. X (1915). 

1 25 Law Quarterly Review, 412, 414, October, 1909. Ante, pp. 285-290. 

303 



304 COLLECTED LEGAL PAPERS 

tian idealist. Experience takes place and is organ- 
ized in consciousness, by its machinery and according 
to its laws, such as the category of cause and effect. 
Therefore consciousness constructs the universe and 
as the fundamental fact is entitled to fundamental 
reverence. From this it is easy to proceed to the 
Kantian injunction to regard every human being as 
an end in himself and not as a means. 

I confess that I rebel at once. If we want con- 
scripts, we march them up to the front with bayonets 
in their rear to die for a cause in which perhaps they 
do not believe. The enemy we treat not even as a 
means but as an obstacle to be abolished, if so it 
may be. I feel no pangs of conscience over either 
step, and naturally am slow to accept a theory that 
seems to be contradicted by practices that I approve. 
In fact, it seems to me that the idealists give away 
their case when they write books. For it shows that 
they have done the great act of faith and decided 
that they are not God. If the world were my dream, 
I should be God in the only universe I know. But 
although I cannot prove that I am awake, I believe 
that my neighbors exist in the same sense that I do, 
and if I admit that, it is easy to admit also that I 
am in the universe, not it in me. 

When I say that a thing is true, I mean that I 
cannot help believing it. I am stating an experience 
as to which there is no choice. But as there are many 
things that I cannot help doing that the universe can, 
I do not venture to assume that my inabilities in the 
way of thought are inabilities of the universe. I 



IDEALS AND DOUBTS 305 

therefore define the truth as the system of my limita- 
tions, and leave absolute truth for those who are 
better equipped. With absolute truth I leave abso- 
lute ideals of conduct equally on one side. 

But although one believes in what commonly, with 
some equivocation, is called necessity; that phe- 
nomena always are found to stand in quantitatively 
fixed relations to earlier phenomena; it does not fol- 
low that without such absolute ideals we have nothing 
to do but to sit still and let time run over us. As I 
wrote many years ago, the mode in which the in- 
evitable comes to pass is through effort. Consciously 
or unconsciously we all strive to make the kind of a 
world that we like. And although with Spinoza we 
may regard criticism of the past as futile, there is 
every reason for doing all that we can to make a 
future such as we desire. 

There is every reason also for trying to make our 
desires intelligent. The trouble is that our ideals for 
the most part are inarticulate, and that even if we 
have made them definite we have very little experi- 
mental knowledge of the way to bring them about. 
The social reformers of today seem to me so far to 
forget that we no more can get something for nothing 
by legislation than we can by mechanics as to be 
satisfied if the bill to be paid for their improvements 
is not presented in a lump sum. Interstitial detri- 
ments that may far outweigh the benefit promised 
are not bothered about. Probably I am too skeptical 
as to our ability to do more than shift disagreeable 
burdens from the shoulders of the stronger to those 



306 COLLECTED LEGAL PAPERS 

of the weaker. But I hold to a few articles of a 
creed that I do not expect to see popular in my day. 
I believe that the wholesale social regeneration which 
so many now seem to expect, if it can be helped by 
conscious, coordinated human effort, cannot be 
affected appreciably by tinkering with the institution 
of property, but only by taking in hand life and 
trying to build a race. That would be my starting 
point for an ideal for the law. The notion that with 
socialized property we should have women free and a 
piano for everybody seems to me an empty humbug. 
To get a little nearer to the practical, our current 
ethics and our current satisfaction with conventional 
legal rules, it seems to me, can be purged to a certain 
extent without reference to what our final ideal may 
be. To rest upon a formula is a slumber that, pro- 
longed, means death. Our system of morality is a 
body of imperfect social generalizations expressed in 
terms of emotion. To get at its truth, it is useful 
to omit the emotion and ask ourselves what those 
generalizations are and how far they are confirmed 
by fact accurately ascertained. So in regard to the 
formulas of the law, I have found it very instructive 
to consider what may be the postulates implied. 
They are generically two: that such and such a con- 
dition or result is desirable and that such and such 
means are appropriate to bring it about. In all de- 
batable matters there are conflicting desires to be 
accomplished by inconsistent means, and the further 
question arises, which is entitled to prevail in the 
specific case? Upon such issues logic does not carry 



IDEALS AND DOUBTS 307 

us far, and the practical solution sometimes may 
assume a somewhat cynical shape. But I have 
found it a help to clear thinking to try to get behind 
my conventional assumptions as a judge whose first 
business is to see that the game is played according 
to the rules whether I like them or not. To have 
doubted one's own first principles is the mark of a 
civilized man. To know what you want and why 
you think that such a measure will help it is the first 
but by no means the last step towards intelligent 
legal reform. The other and more difficult one is 
to realize what you must give up to get It, and to 
consider whether you are ready to pay the price. 

It is fashionable nowadays to emphasize the cri- 
terion of social welfare as against the individualistic 
eighteenth century bills of rights. I may venture to 
refer to a book of mine published thirty-four years 
ago to show that it is no novelty. 2 The trouble with 
some of those who hold to that modest platitude is 
that they are apt to take the general premise as a 
sufficient justification for specific measures. One 
may accept the premise in good faith and yet dis- 
believe all the popular conceptions of socialism, or 
even doubt whether there is a panacea in giving 
women votes. Personally I like to know what the 
bill is going to be before I order a luxury. But it 
is a pleasure to see more faith and enthusiasm in 
the young men; and I thought that one of them made 
a good answer to some of my skeptical talk when he 
said, "You would base legislation upon regrets rather 
than upon hopes." 

2 Hie Common Law, pp. 43, 44, 4& 



BRACTON DE LEGIBUS ET CONSUETU- 
DINIBUS ANGLIAE 

Edited by George E. Woodbine, Yale University Press, 
New Haven, 1915. Volume i. 

ONE who in the last thirty-five years, not to speak 
of more usual themes, has seen more of treaties with 
North American Indians than of Bracton cannot 
speak competently of the detail of this monumental 
work. Indeed the case probably is not unlike that 
of the Greek Lexicon of the Roman and Byzantine 
periods written by the late Professor Sophocles, of 
which it was said that there was only one man in 
Europe who could criticize it. That one in this case 
may be my friend Sir Frederick Pollock, but it cer- 
tainly is not L But some things may be said. The 
history of the law is of much importance to the 
understanding of the law, even apart from its signifi- 
cance in the more disinterested study of anthro- 
pology. Bracton is a work of the very highest 
value for the theme. There is no edition that gives 
us anything like an adequate approach to the un- 
known original, that lets us see the variations of the 
better manuscripts, or that opens to us a solution of 
the problems of the text. The little but important 
world that these questions interest has been praying 

* 7ak Review, 1915. 



BRACTON DE LEGIBUS 309 

for years that someone might undertake Professor 
Woodbine's task. 

Now the man has come. Backed by a generous 
gift of money he makes the more splendid one of his 
life. For he already has devoted years and expects 
to devote many more to bringing his work to an end. 
The first volume, now published, proves the thorough- 
ness, the all but exhaustive collection of apparatus 
(that two manuscripts have been missed is no fault 
of his), and the critical aptitude that he commands. 
It contains a study of the pedigree of the texts with 
diagrams illustrating their probable relations to their 
source and to one another, and an analysis of the 
addiciones. It illustrates the infinity of detail that 
the editor has scrutinized with microscopic eye. It 
shows the interest of the results to which his re- 
searches point. At this stage perhaps the only thing 
really proper to be dwelt upon is the nobility of spirit, 
the heroism of the scholar that the undertaking ex- 
hibits. Those who at any time have spent fewer 
months than Professor Woodbine already has spent 
years upon details, fired with the faith that one day 
they would disclose the organic line of life that made 
them great, those who remember Browning's picture 
of his imaginary hero of letters in "A Grammarian's 
Funeral/ ' who 

Gave us the doctrine of the enclitic De, 

Dead from the waist down, 

will salute with a soldier's respect for a soldier this 
real man who is achieving honor by sacrificing self 
as fully as did the Grammarian and to a greater end. 



NATURAL LAW* 

IT is not enough for the knight of romance that 
you agree that his lady is a very nice girl if you 
do not admit that she is the best that God ever made 
or will make, you must fight. There is in all men 
a demand for the superlative, so much so that the 
poor devil who has no other way of reaching it attains 
it by getting drunk. It seems to me that this de- 
mand is at the bottom of the philosopher's effort 
to prove that truth is absolute and of the jurist's 
search for criteria of universal validity which he col- 
lects under the head of natural law. 

I used to say, when I was young, that truth was 
the majority vote of that nation that could lick all 
others. Certainly we may expect that the received 
opinion about the present war will depend a good 
deal upon which side wins (I hope with all my soul 
it will be mine), and I think that the statement was 
correct in so far as it implied that our test of truth 
is a reference to either a present or an imagined 
future majority in favor of our view. If, as I have 
suggested elsewhere, the truth may be defined as the 
system of my (intellectual) limitations, 1 what gives 

* Suggested by reading Francois Geny, Science et Technique en 
Droit Positij Prwt, Paris, 1915. (Harvard Law Review, Vol. XXXII.) 
(1918.) 

1 Ante, Ideals and Doubts. 

310 



NATURAL LAW 3** 

it objectivity is the fact that I find my fellow man to 
a greater or less extent (never wholly) subject to the 
same Can't Helps. If I think that I am sitting at a 
table I find that the other persons present agree with 
me; so if I say that the sum of the angles of a tri- 
angle is equal to two right angles. If I am in a 
minority of one they send for a doctor or lock me up; 
and I am so far able to transcend the to me con- 
vincing testimony of my senses or my reason as to 
recognize that if I am alone probably something is 
wrong with my works. 

Certitude is not the test of certainty. We have 
been cock-sure of many things that were not so. If 
I may quote myself again, property, friendship, and 
truth have a common root in time. One can not be 
wrenched from the rocky crevices into which one has 
grown for many years without feeling that one is 
attacked in one's life. What we most love and 
revere generally is determined by early associations. 
I love granite rocks and barberry bushes, no doubt 
because with them were my earliest joys that reach 
back through the past eternity of my life. But while 
one's experience thus makes certain preferences dog- 
matic for oneself, recognition of how they came to 
be so leaves one able to see that others, poor souk, 
may be equally dogmatic about something else. 
And this again means scepticism. Not that one's 
belief or love does not remain. Not that we would 
not fight and die for it if important we all, whether 
we know it or not, are fighting to make the kind 
of a world that we should like but that we have 



3 i2 COLLECTED LEGAL PAPERS 

learned to recognize that others will fight and die 
to make a different world, with equal sincerity or 
belief. Deep-seated preferences can not be argued 
about you can not argue a man into liking a glass 
of beer and therefore, when differences are suffi- 
ciently far reaching, we try to kill the other man 
rather than let him have his way. But that is per- 
fectly consistent with admitting that, so far as ap- 
pears, his grounds are just as good as ours. 

The jurists who believe in natural law seem to me 
to be in that naive state of mind that accepts what 
has been familiar and accepted by them and their 
neighbors as something that must be accepted by 
all men everywhere. No doubt it is true that, so far 
as we can see ahead, some arrangements and the rudi- 
ments of familiar institutions seem to be necessary 
elements in any society that may spring from our 
own and that would seem to us to be civilized 
some form of permanent association between the 
sexes some residue of property individually owned 
some mode of binding oneself to specified future 
conduct at the bottom of all, some protection for 
the person. But without speculating whether a 
group is imaginable in which all but the last of these 
might disappear and the last be subject to quali- 
fications that most of us would abhor, the question 
remains as to the Ought of natural law. 

It is true that beliefs and wishes have a transcen- 
dental basis in the sense that their foundation is 
arbitrary. You can not help entertaining and feel- 
ing them, and there is an end of it. As an arbitrary 



NATURAL LAW 313 

fact people wish to live, and we say with various de- 
grees of certainty that they can do so only on certain 
conditions. To do it they must eat and drink. 
That necessity is absolute. It is a necessity of less 
degree but practically general that they should live 
in society. If they live in society, so far as we can 
see, there are further conditions. Reason working 
on experience does tell us, no doubt, that if our wish 
to live continues, we can do it only on those terms. 
But that seems to me the whole of the matter. I see 
no a priori duty to live with others and in that way, 
but simply a statement of what I must do if I wish, 
to remain alive. If I do live with others they tell me 
that I must do and abstain from doing various things 
or they will put the screws on to me. I believe that 
they will, and being of the same mind as to their 
conduct I not only accept the rules but come in time 
to accept them with sympathy and emotional affirma- 
tion and begin to talk about duties and rights. But 
for legal purposes a right is only the hypostasis of a 
prophecy the imagination of a substance support- 
ing the fact that the public force will be brought to 
bear upon those who do things said to contravene it 
just as we talk of the force of gravitation account- 
ing for the conduct of bodies in space. One phrase 
adds no more than the other to what we know with- 
out it. No doubt behind these legal rights is the 
fighting will of the subject to maintain them, and the 
spread of his emotions to the general rules by which 
they are maintained; but that does not seem to 
me the same thing as the supposed a priori discern- 



COLLECTED LEGAL PAPERS 

ment of a duty or the assertion of a preexisting right. 
A dog will fight for Ms bone. 

The most fundamental of the supposed preexisting 
rights the right to life is sacrificed without a 
scruple not only in war, but whenever the interest of 
society, that is, of the predominant power in the com- 
munity, is thought to demand it. Whether that 
interest is the interest of mankind in the long run no 
one can tell, and as, in any event, to those who do not 
think with Kant and Hegel it is only an interest, the 
sanctity disappears. I remember a very tender- 
hearted judge being of opinion that closing a hatch 
to stop a fire and the destruction of a cargo was justi- 
fied even if it was known that doing so would stifle 
a man below. It is idle to illustrate further, because 
to those who agree with me I am uttering common- 
places and to those who disagree I am ignoring the 
necessary foundations of thought. The a priori men 
generally call the dissentients superficial. But I do 
agree with them in believing that one's attitude on 
these matters is closely connected with one's general 
attitude toward the universe. Proximately, as has 
been suggested, it is determined largely by early asso- 
ciations and temperament, coupled with the desire 
to have an absolute guide. Men to a great extent 
believe what they want to although I see in that 
no basis for a philosophy that tells us what we should 
want to want. 

Now when we come to our attitude toward the 
universe I do not see any rational ground for demand- 
ing the superlative for being dissatisfied unless we 



NATURAL LAW 315 

are assured that our truth is cosmic truth, if there 
is such a thing that the ultimates of a little crea- 
ture on this little earth are the last word of the un- 
imaginable whole. If a man sees no reason for be- 
lieving that significance, consciousness and ideals are 
more than marks of the finite, that does not justify 
what has been familiar in French sceptics; getting 
upon a pedestal and professing to look with haughty 
scorn upon a world in ruins. The real conclusion is 
that the part can not swallow the whole that our 
categories are not, or may not be, adequate to for- 
mulate what we cannot know. If we believe that 
we come out of the universe, not it out of us, we must 
admit that we do not know what we are talking about 
when we speak of brute matter. We do know that 
a certain complex of energies can wag its tail and 
another can make syllogisms. These are among the 
powers of the unknown, and if, as may be, it has still 
greater powers that we can not understand, as Fabre 
in his studies of instinct would have us believe, studies 
that gave Bergson one of the strongest strands for 
his philosophy and enabled Maeterlinck to make us 
fancy for a moment that we heard a clang from 
behind phenomena if this be true, why should we 
not be content? Why should we employ the energy 
that is furnished to us by the cosmos to defy it and 
shake our fist at the sky? It seems to me silly. 

That the universe has in it more than we under- 
stand, that the private soldiers have not been told 
the plan of campaign, or even that there is one, rather 
than some vaster unthinkable to which every predi- 



3 r6 COLLECTED LEGAL PAPERS 

cate is an impertinence, has no bearing upon our con- 
duct. We still shall fight all of us because we 
want to live, some, at least, because we want to 
realize our spontaneity and prove our powers, for the 
joy of it, and we may leave to the unknown the sup- 
posed final valuation of that which in any event has 
value to us. It is enough for us that the universe 
has produced us and has within it, as less than it ? 
all that we believe and love. If we think of our 
existence not as that of a little god outside, but as 
that of a ganglion within, we have the infinite be- 
hind us. It gives us our only but our adequate sig- 
nificance. A grain of sand has the same, but what 
competent person supposes that he understands a 
grain of sand? That is as much beyond our grasp 
as man. If our imagination is strong enough to ac- 
cept the vision of ourselves as parts inseverable from 
the rest, and to extend our final interest beyond the 
boundary of our skins, it justifies the sacrifice even 
of our lives for ends outside of ourselves. The 
motive, to be sure, is the common wants and ideals 
that we find in man. Philosophy does not furnish 
motives, but it shows men that they are not fools for 
doing what they already want to do. It opens to the 
forlorn hopes on which we throw ourselves away, the 
vista of the farthest stretch of human thought, the 
chords of a harmony that breathes from the unknown. 



August, 1918. 



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